Moere v Carden [2021] PGDC 163; DC7019 (22 November 2021)

DC7019

Papua New Guinea

[In the Criminal Jurisdictions of the District Court Held at Waigani]
SITTING IN ITS COMMITTAL JURISDICTION

COM NO 713-715 OF 2021
CB NO 1289 OF 2021

BETWEEN:

LEANA MOERE
[Informant]

AND:

SHAUN ANTHONY CARDEN
[Defendant]

Waigani: Paul Puri Nii

22^nd November 2021

COMMITTAL PROCEEDINGS: Charges- two (2) counts of stealing -Section 372(1) & (10) for the first count and Section 372 (1)(7)(a) and (10) for the second count of the Criminal Code Act 1974, Chapter No. 262. Did Police detectives supply prima facie reasonable evidence clarifying and sustaining all the elements of the charges to commit the Defendant to face trial in the National.

PRACTICE AND PROCESS: Permissible obligation for prima facie Case-Existence of the fundamentals of charges of two (2) counts of stealing –Evidence of Complainant a former employee of IEA who was supposedly terminated by the Defendant. Defendant was arrested and charged based on this complaint- Complainant alleges Defendant stole money from IEA while being employed. Defendant stole money through a contract of Employment-Defendant was illegally employed.

PNG Cases cited:

Police v Kua [2021] PGDC 136; DC6095 (22 September 2021)
Akia v Francis [2016] PGNC 335; N6555 (24 August 2016)
Anton v Chea [2021] PGDC 103; DC6056 (22 July 2021)
Anton v Chea [2021] PGDC 131; DC6088 (14 September 2021)
Erimas Wartovo –v- State (2015) SC1411
Police v Toua (2021) DC5032
Police –v- Kambian [2021] PGDC 66; DC6021 (30th January 2021)
Police –v- Medako [2021] PGDC 54; DC6011 (31 May 2021)
Police –v- Koka [2021] PGDC 53; DC6010 (31 May 2021)
Police –v- Dunamis [2021] PGDC 121; DC6067
State v Kepo (2019) N7807
Police –v- Kauna [2021] PGDC 120; DC6075 (25th August 2021)
Police -v- Naria[2021]PGDC 119; DC6074(25th August 2021)
Police -v- Kimisopa [2021] PGDC 76; DC6031(30th June 2021)

Overseas cases cited:
Nil

References

Legislation

Criminal Code Act 1974, Chapter 262
District Court Act 1963, Chapter 40
Immigration and Citizenship Act
Search Act

Counsel
Police Prosecutor: Sgt Christian Iga For the Informant
Mr. Dane Mel: Mel and Henry Lawyers For the Defendant

DECISION ON POLICE EVIDENCE

21^th November 2021

INTRODUCTION

NII, P. Paul Magistrate. This is my decision on whether a prima facie case is applicably authenticated inside the inference of Section 95(1) of the District Court Act 1963, after when prosecution evidence and Defense argument are considered. On 20^th September 2021, Mr Mel representative of the Suspect made his argument subsidized on his submission filed on 16^th August 2021. The essence of the submission is protesting to the Prosecution evidence. Police Prosecutor Sergeant Christian Iga in return submitted to court police evidence in the police-hand-up-brief is appropriate to commit the Defendant. Subsequently, I have judiciously dignified both benefits relating to their sentiments and today is my pronouncement on committal.

FACTS (PARTICULARS)

1. Police Summary of Facts categorizes the Defendant as aged 62 years of Wongaling beach in Queensland, Australia who was employed by Steamships trading (PNG) Limited until his contract of engagement concluded in December 2018, and hence he applied for an employment with International Education Agency(IEA)(PNG) Limited as Manager for position of People and culture. Police allege the positon was advertised by the former CEO of IEA as confidential which was only known to the Defendant and not others and moreover there was no board approval on this and thus reflect occupation fraud. Police however allege Defendant did not return to Australia after lapse of contract of employment with steamships but kept on living in PNG and on 10^th January 2019, Defendant signed a new contract of employment that was facilitated by the former CEO of IEA.
   
2. Police allege Defendant was issued with a new work permit with a permit Number of 22010572 for the job of Human Resources Manager a dissimilar job from the one in which the Defendant was contracted to would expire on 23^rd January 2022. Police went on to says Defendant then commenced employment with IEA on 27^th July 2019 and he received his fist pay on 15^th August 2019. Police then says on pay 19, Defendant colluded with the Chief Financial officer by having himself paid K74, 528.28, which was an increase of 386.49%, but the actual 20% accruals should be K19, 283.18. Police says Defendant is entitled to contract gratuity and accruals at the yearend but claimed those in between which was further demonstrated when on 7^th September 2019, Defendant was paid a net of K41, 193.49 through cheque No 1012341424.
   
3. Police also allege Defendant commenced duty on 27^th July 2019, without a working resident employment visa thereby his presence in PNG was illegal by reason of him not having a visa. Police says Defendant received his first salary on 9^th August 2019 and thereafter he had his accruals paid after he had nothing to show and claim for, he was only employed for few days.
   

CHARGES (Accusations)

4. Defendant is charged with two (2) counts of stealing under Section 372 (1)(7)(a) and (10) of the Criminal Code Act [chapter 262] and PNG Migration Act. The offending charges against the Defendant are further explicated in the subsequent manner:

(Criminal Code Act)

“372. Stealing.

(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.

(7) If the offender is a clerk or servant, and the thing stolen–

(a) is the property of his employer

(10) If the thing stolen is of the value of K1,000.00 or upwards, he is liable to imprisonment for a term not exceeding seven years.”

(Immigration Act)

“16. Offences.

(1) A person who–

(e) makes or causes to be made a false return, false statement, false representation, or wilfully withholds any relevant fact or information in connection with an obligation imposed on him under or by virtue of this Act.”

ISSUE

5. Whether police evidence is adequate to commit the Defendant on the allegations of two counts (2) of stealing against the Defendant.
   

THE LAW

The Jurisdiction basis of Committal Proceeding

6. The doctrines under Sections 94 to 100 of the District Court Act 1963, gives the authentic foundation on how the committal development ought to be administered by the court. The law court needs to be comfortable with police evidence incorporating eyewitness statements with prosecution evidence by meeting the elements of the two (2) counts of stealing. In the application of the committal dominion, court will appraise every statement engaged in the prosecution file served to the court on 06^th July 2021.
   
7. Numerous described cases have recapped and advanced the committal court power which are authoritative in the improvement of committal court jurisprudence which I sense obligatory and imperative to accustom them in my decision. The court in Police –v- Dunamis [2021] PGDC 121; DC 6067 and Police v Kua [2021] PGDC 136; DC6095, offered the committal court’s helpfulness under Section 95 of the District Court Act. This locus is mutually strengthened and functional in the cases of Police –v- Kauna [2021] PGDC 120; DC 6075 and Police-v- Naria[2021]PGDC 119; DC 6074. The permissible ability in Section 95[i] and the subsidiary case laws originate to effect immediately after investigation on the prosecution file and Defense case are established. In buildup to this, the case of Police-v-Kimisopa [2021] PGDC 76;DC 6031, has undoubtedly well-maintained the position his honor Gavara-Nanu, J, sustained in Akia v Francis [2016] PGNC 335; N6555. The court expanded the roles of committal court as a purifying improvement where evidence is strained out from the prosecution file to confirm it lawfully and discreetly meets all elements of the compatible charges to endorse there is satisfactory evidence.
   

ELEMENTS OF THE OFFENCE

8. The distinction of developing each element of the offence with prosecution evidence is fundamental to establish an acceptable decision. The court in Police –v-Kambian [2021] PGDC 66; DC 6021, clenched the position involved in Police v Medako [2021] PGDC 54; DC6011 that prosecution must institute all the elements of the pertinent charges. Furthermore, this point is exclusively declared by the court in Police-v-Kimisopa[ii] that all transgressions have two(2) elements which are “mental” (mens rea) and “physical” (actus reus), equally prosecution must corroborate the elements.
   
9. The court in Police –v-Kimisopa[iii] imposes a commitment on the law court to thoughtfully recognize the criminal charges against the Defendant before assessment on evidence is engaged. The court’s attitude on this matter is, it will clarify each charge as it is to afford an untarnished insight in respect to the prosecution evidence.
   
10. The offence of Stealing is defined by the Oxford dictionary as taking (another individual’s possessions) without authorization or permissible right without anticipating to return. Sponsored on these explanations, the court shall now categorize the elements and contest with Prosecution evidence to verify whether or not there is compulsory evidence to compel the Defendant to face trial.
    

Elements of Stealing under Section 372(1)(7)(a) & (10)[iv]

a) Any person

b) who steals anything

c) capable of being stolen.

d) If the offender is a clerk or servant,

e) and the thing stolen

f) is the property of his employer.

Elements of stealing under Section 16(1)(e) of the Immigration Act.

a) A person who

b) makes or causes to be made a false return,

c) false statement, false representation, or

d) wilfully withholds any relevant fact or information in connection

e) with an obligation imposed on him under or

f) by virtue of this Act.

EVIDENCE

11. The capability in Police v Koka [2021] PGDC 53; DC6010, is appropriate in matters linking indictable burdens. The court accentuated the implication of evidence that it exhibits a significant fragment in the administration of criminal fairness to maintain an unbiased and balanced decision. The court in this matter proceeded further and stated that an accusation is a mere contention unless documented by evidence. I reaffirm part of the judgement below:
    

.....“An allegation will only be proven through evidence since it is the accessible body of facts or material designating whether the allegation against the Defendant is proper or made-up” ....

12. Prosecution witness statements and accused arguments on the sufficiency of evidence must please the court that enough evidence is produced thereby meeting all the elements. The Court shall only commit the Defendant if prosecution evidence and arguments are judicious to establish the Defendant’s allegation. Henceforward, the prosecution case defined in the police file shall be dignified to launch its proficiency by narration to the elements.
    

PROSECUTION CASE

13. I will restate the principles in Police –v-Kimisopa[v] by explaining what constitutes a prosecution case as proceeds from the ROI, Witness statements, police arresting officer’s statement and other documentary evidence including exhibits.
    

Prosecution evidence in brief.

1. Karaho-Teoti Asimi – he is the Complainant and a teacher who says he started his employment career with IEA in 2003 as Deputy Principal and was based at their Korobosea establishment and subsequently engaged in other occupations within the institution as well. Witness says in 2012, he joined the head office and was working closely with the top management including the board. Witness says in 2018, the former CEO of the school created a position called “Manager-people and culture” in 2019, which is same as HR manager and marked it as “confidential” for purposes of recruiting the Defendant after his contract with Steamships Trading Company Limited lapsed. State witness says on 10^th January 2021, a letter of Contract was made to the Defendant which he accepted on the same date.
   
2. Witness says he directed the payroll supervisor not to put the Defendant on payroll since the Defendant at the time had no employment visa and it was against the Institution’s policy but his concern was disregarded and subsequently Defendant was put on payroll. Witness also says in July 2019, there were some offline payments made to the Defendant without following the due process. Witness then says Defendant was already paid a total of K134, 261.17 which was paid between 22^nd January 2019 and 30^th June 2019 while waiting for his employment visa to be approved. Moreover, this witness says Defendant commenced employment on 27^th July 2019 and on 7^th October 2019, applied for a backdate and was paid net pay of K41,193.43 from gross K74,528.25, thus the payroll system was compromised and manipulated the serve the Defendant’s interest.
   

100. Serah Waiat –this witness claims she is the payroll officer with IEA and says it is improper to pay the Defendant when he was still overseas pending employment with IEA. Witness says she was not aware of the payment as it did not go through the formal payroll process where all new employees would complete the commencement form known as IEA 5 then a pay file would be created to register them on payroll list. Witness says Defendant did not submit a commencement form as a new employee and he never clocked in for the hours between 22^nd February 2019-26^th June 2019 but yet he was paid full salary by IEA. This witness also says End of Employment (EOE) super benefit is usually paid at the end of employees contract but Defendant claimed that early.
     

4. Rea Hoi- Witness says he has served IEA for 13 years as their administrative driver and says on 7^th October 2019, he was given a cheque valued at K41, 193.43, to be deposited into the accused’s account at BSP. Witness says he deposited the money at Gordons commercial branch at 2.07pm.
   
5. Mark Tavukuin- This witness says he is employed with the Department of Labor and Industrial Relations as a Labor inspector who is responsible for work permits. Witness says that his record confirms Defendant was issued with a foreign work permit Number 19050127 on 8^th May 2016 and expired on 6^th May 2019 to be employed with Steamships LTD. However, witness says Defendant’s work permit was cancelled and he was repatriated back to Australia on 31^st December 2018 on flight PX 0090 from Port Moresby to Cairns at 9.30am.
   
6. Liosi Issac. Witness says he is a Senior Migration Officer with PNG Immigration and Citizenship authority and his role is to investigate offences against the authority. Witness says Defendant was arrested after investigation confirms his involvement in fraud and soliciting money from IEA. Witness says Defendant was issued with a new work permit No 22010573 on 22^nd January 2019, that would expire on 23^rd January 2022. Witness also says at the time when work permit was issued, he picked up his employment visa No 99902753969 which was issued on 19^th August 2019, in Cairns, Australia and thus subsequently flew to PNG to commence employment on 28^th January 2019 as per his contract of employment with IEA. Witness further went on to say Defendant received 7 salaries between 6^th March 2019 and 10^th June 2019 while offshore in Cairns, Australia.
   
7. Leana Moere-Witness says he is a police officer with RPNGC for over 42 years specializing in Criminal Investigations. He says he received a complaint form an employee form IEA and started his investigation which thus lead to the arrest of the Defendant and the charges laid against him. His statement is all about how the accused was interviewed and the manner in which the interview was conducted. Witness says upon establishing sufficient evidence against the Defendant he was arrested and charged for the offence of stealing K74,528.25, for doing nothing therefore breaching the visa obligations.
   
8. Paul Dupi- this is another police witness and he claims he was invited to be the police corroborator or person who was with the arresting officer at the time when the Defendant was interrogated for the allegations against him.
   

DEFENSE CASE

14. Defendant through Lawyer Dane Mel has filed two (2) submissions each corresponding to the different counts of stealing against the Defendant. Both submissions were filed on 16^th August 2021. Defendant’s Lawyer argued based on the submissions.
    

Defendant’s First Submission (First Charge)

1. Defendant submit witness statements are defective. Defendant also argue statements were signed prior to the alleged activity deposed on the declarations and thus raised the issue of whether witnesses knew their own statement before signing it. Defense funded their argument in the case of Anton v Chea [2021] PGDC 103; DC6056, that the maker of the statement must know the content of their statement before signing it. Defendant argues documents tendered to court as evidence must comply with the legal requirement under Section 94 and 94C of the District Court Act, nevertheless, the witness statements in the present allegation against the Defendant have controverted the principle under the law.
   
2. Defendant argues on evidence obtained under the Search Warrant as illegal because the search warrant is defective since the order for search was issued prior to the date for application. Defendant says application for search was filed on 13^th May 2021 and court order for search was issued on 12^th May 2021, which was in the wrong order or perhaps putting the cart before the horse. Defendant also submits even the named educational entity is wrongly declared on the search warrant. Defendant argues the correct name is International Education agency of PNG and not International Education Agency but police named the latter which is wrong.
   

100. Moreover, Defendant submits for the court not to consider evidence under the Immigration Act since the matter was already determined by another court on 16^th August 2021 and a ruling on the same was pronounced whereby court upheld the Defendant’s application and dismissed the allegation which was separately filed under the Immigration Act. Defendant based his arguments on the doctrines of Police v Toua (2021) DC 5032 and State v Kepo(2019) N7807, elements of the allegation are not adequately shown by police to make a case of stealing against the Defendant. Thus, in respect to the first submission, Defendant argues pursuant to Section 95(2) of the District Court Act and with consistent to the guidelines under Erimas Wartovo –v- State (2015) SC1411, Defendant argues police have failed to provide sufficient evidence satisfying all the elements of the offence of staling.
     

Defendant’s Second Submission (Second charge)

4. Defendant’s second submission is same as the first submission and they both raise the issue of stealing. In the second submission Lawyer for the accused argues the allegations of staling do not arise out of a compliant made by IEA, the proprietors of the money allegedly stolen but was lodged by some other person. Defendant argues he is still employed by IEA and therefore the allegations are unsubstantiated and do not have importance to succeed.
   
5. Otherwise, Defendant’s arguments on the second submission was already addressed in his first submission and thus will look at the first submission. In summary Defendant submits, the police evidence in the police hand-up brief against the Defendant does not meet all the elements of the allegation of stealing.
   

CONSIDERATION OF EVIDENCE

Police evidence

15. Defendant is arrested and charged for two counts of stealing under Section 372 of the Criminal Code Act. The first count attaching to alleged stealing of K134,261, property of IEA between 22^nd January 2019 and 26^th June 2019, while the second count is for alleged stealing of K74,528.25 also property of IEA on 3^rd October 2019.
    
16. While the Defendant was arrested and charged for stealing under the Criminal Code Act, he was also charged under the Immigration Laws for breaching visa and work permit conditions. The later charge was administered at the Summary court while the current charge of stealing before me is at the committal. The allegation under Immigration Act (DC No 942 of 2021) for breach of visa obligations was struck out by the Waigani summary court on 16^th August 2021, for want of time limitation under Section 36(1) of the District Court Act.
    
17. Police evidence is made up of statements from representatives of Police, Department of Labor and Immigration and IEA. The Police only informs the court of their participation after a complainant against the Defendant was lodged. Their involvement is basically about what materialized during investigations, interrogation and consequent charges. The Department of Labor and immigration witnesses gave evidence of any alleged irregularities involving the Defendant’s visa and his employment contract since he is a foreigner. The employees of IEA gave evidence of what they allegedly saw and witnessed during the course of the Defendant’s first commitment with IEA until he was arrested and charged by police.
    
18. I note the issue raised by police in respect to breach of visa obligations under the Immigration Act was struck out by the summary court under Section 36(1) of the District Court Act, for instituting proceedings after six (6) months from the date of the alleged cause of action. Defendant was charged under the immigration Act to assert his existence in the county as unlawful. However, since the charge under the immigration Act was struck out, it is my view that Defendant’s presence in PNG since arriving here until he was arrested and charged as permissible. If the Defendant’s presence in PNG was legal then will proceed to the other charges of stealing under the Criminal Code Act.
    
19. I note the police file served on the Defendant has a combination of evidence from Police, Immigration and Labor Authority and IEA. However, since the Court had struck out the charge under the Immigration Act, the Evidence from Labor and Immigration will not be relied upon here when considering evidence on stealing against the Defendant. That does not affect the other evidence in the police file dependable with the principles under the case of Anton v Chea[vi]. Consequently, I will proceed and assess evidence of Karaho-teoti Asimi, Serah Waiat and Rea Hoi since they are employees of IEA where the subject of stealing allegedly took place.
    

Defense case.

20. Defendant through his Lawyer submits police evidence in the police file is insufficient to commit the Defendant and he has raised his arguments based on four (4) grounds and those grounds will be carefully looked into while addressing the arguments on insufficiency of evidence.
    
21. Firstly, Defendant says the witness statements were signed prior to the date of alleged crime and thus raised the principles in case of Anthon v Chea[vii] that the maker of the statements did not understand the contents of their own statements before signing it and thus submits that court should refused the statements. In response to this argument, I must guarantee all statements put before the court complies with the compulsory necessities under Section 94 (1A). I know I do not have the powers to test evidence but to assess evidence, however, in the development of measuring evidence, I will ensure evidence put before me is appropriately before the court. I will make sure the process of evaluating evidence is not ill-treated but in submission with Sections 95-100 of the District Court Act thereby the process of initial investigations leading to the arrested and subsequent committal hearing are well and in order.
    
22. The court in Ermas Wartovo –v- State (2015) SC1411, places an obligation on the committal court magistrate to assess and evaluate witness statements put in the police file properly before the court. The court in this matter manifested obviously that criminal commencing method from the beginning to the end must be fittingly exhibited in obedience with the Criminal Practice and procedures that are well recognized and fitting in the committal court jurisdiction. The court in Ermas Wartovo –v- State[viii] developed the accurate and permitted ways of dealing with committal matters as :
    

“41.....It would also be appropriate to deal with any abuse of process at the investigation state and at the District Court level by the District Court.

42....The District Court is obligated to properly follow all the required steps in the process. With the assistance of the parties and any counsel, the District Court undertakes a trial in a manner that is fair to both sides and in a way that is impartial, with all the rules of practice and procedure,

43...The committing magistrate needs to be satisfied that the formal requirements of the provisions under consideration are met and that there is a prima facie case for the accused to stand trial in the National Court..............”

23. The eminence about the Supreme court’s interpretation on the issue of “abuse of process” in my assessment is relevant in the administration of committal proceedings form the initial stage to the final which are the dates of arrest and date set for ruling on committal.
    
24. Record of interview(ROI) against the Defendant was conducted on 29^th April 2021 and at question 74 of the record of interview indicates Defendant was formally arrested after conclusion of the ROI which means he was arrested on 29^th April 2021 and police information shows the charge was registered with police on 11^th May 2021 ad on the same date (11^th May 2021) Defendant was brought to court and he was subsequently arraigned. The date in which the information against the Defendant was lodged is the same as the date of his arraignment. I will rule that immediately after when information was lodged with police, Defendant was brought to court but was arrested earlier and thus there is nothing wrong with the information as it is lawful before me. However, I will proceed to examine the state witness statements and ratify whether they are lawful before me in line with the necessities under Section 94(1A) of the DCA and ideologies in the case of Anthon v Chea.[ix].
    
25. The statement of Karaho-teoti Asimi the Complainant in this matter was lodged on 10^th February 2021 and based on this complaint, on 29^th April 2021, Defendant was legitimately arrested and charged. The statement of the Complainant is in order as far as the dates and any succeeding events which emanated from his complaint are concerned. However, the statements of Serah Waiat and Reo Hoi are not admissible as they were sworn on 21^st January 2020 which was even before the date (10^th February 2021) in which the initial complaint against the Defendant was lodged and I wonder how statements in support of a Complainant are made before the compliant was lodge. Only complaints can be lodged by different people on different dates but statements in support of an existing complaint shall be made after the complaint has been filed.
    
26. I believe the statements were written and typed by persons other than the witness but witness without knowing the contents went ahead and signed and I am therefore contended the statements of Serah Waiat and Reo Hoi do not conform with the requirements under Section 94(1A) of DCA and the Principles in Anthon –v- Chea and thus both statements are refused. The statement of Complainant Karaho-teoti Asimi is accepted but the statements of, Serah Waiat and Rea Hoi are refused. Lastly, the Arresting officer and Corroborators statements are dated 21^st January 2020, which is the date before the Defendant was and charged. How could the arresting officer and police corroborators statements be lodged prior to the date of arrest and interrogation? In order to answer this question, I have to answer another question myself and that is whether or not the Defendant was arrested and charged? If the Defendant was arrested and charged as demonstrated in the ROI then I will take that police statements were to document and upkeep the ROI only. Nevertheless, if police statements were in support of the principal complaint then given the date variance their statements would be questioned. I therefore accept that the difference in date as a mere typing error and it does not affect the ROI that Defendant was not arrested and charged.
    
27. Secondly, Defense argues the search warrant is unreliable and therefore evidence collected from the defective search warrant be dismissed. I note from my record that application for search warrant was lodged with the court on 13^th May 2021 and Order for search was issued on 12^th May 2021. Date shows order was issued before the application which was thus done conflicting to the logically operative arrangement of proceedings or perhaps like “putting the cart before the horse”. What does the Search Act talk about discrepancy in dates? Section 8 of the Search Act, takes the subsequent characteristics:
    

“8. FORM OF WARRANT.

A warrant shall–

(a) describe the place to be searched; and

(b) state briefly the offence or matter of the information on which it is founded; and

(c) order the person to whom it is directed to search the place and seize anything he may find in that place which relates–

(i) to the offence or the matter of the information on which the warrant is founded; or

(ii) to any other offence.”

28. The provision that delivers a search warrant should cover the place to be searched and briefly state the allegation subject of the search. There is nothing in the search Act that provides that the purpose of the search would be defeated by conflicting dates on the application for search and the subsequent order for search. I will take this as an inconsequential organizational inaccuracy on the part of the court registry when trying to fill in the application and its subsequent order and thus, the Defendant’s argument on this issue of date is refused. However, I also note the entity to be searched as stated on the search warrant is International Education Agency (PNG) Limited but the correct name is International Education Agency of Papua New Guinea. Section 8(a) of the Search Act states that the search warrant should state the name of the place to be searched. I note the search warrant contains a slight change on the corporate name but to mean the same place where the Defendant was allegedly employed. The Law under the Search Act does not say search would be defective on naming the wrong place to be searched but the name of the place to be search should be named and thus, I am satisfied the Defendant’s employer despite having trivial corporate inconsistency in the name was mentioned in the search warrant to mean the Defendant’s employer and thus the argument by the Defendant under this lag of submission is refused.
    
29. Thirdly, Defendant submits the allegation be dismissed as other connected purported allegations on the issues of illegal work permit and visa were already dismissed by the Grade 5 court for want of time limitation. I have noted the police file and observed that it contains evidence from employees of Immigration and Citizenship Authority, IEA and Police. Since the grade 5 court struck out the issue under the Immigration Act, I will not entertain evidence from employees of Immigration and Citizenship Authority and thus the statements of state witness Mark Tavukuin and Liosi Isaac are refused. In doing that, I am not declining the entire police file but only the statements from employees of Immigration and citizenship Authority.
    
30. Finally, Defendant says the allegation was purportedly lodged by a person other than the employer or owners of the money alleged to be stolen by the Defendant. Defendant says the allegation be dismissed since a different person lodged a complaint against the Defendant. By common practice complaints could be lodged by the victims or person(s) affected by the conduct(s)of another person. In my view Lodging of a complaint is not only limited to the victim or someone who is affected by someone’s conduct but could also be lodged by a person other than the victim if they were of the view that something was not right and not in the interest of public policy and justice. This means anybody can lodge a complaint with police so long as there is evidence to back up that the suspected person has committed a crime or about to commit one. Funded on this, I refuse to accept the submission by Defendant that the complainant is not the appropriate person to lodge the complaint.
    

RULING

31. After having said that, I will not tolerate all the other statements put forward in the Police file as they are refused except the arresting officer and Complainant. The Complainant’s statement is lawfully before the court and thus I will rely upon to make my ruling. The question is should the Defendant be committed on the statement of the Complainant unaided by other witnesses? The court in Anton v Chea [2021] PGDC 131; DC6088 ruled that the complainant's statement formed the creation of a police case. The court in this matter ruled on the importance of the complainant's statements and how it would be regulated to favor the ending. The court ruled that:
    

“......the victim statement should form the foremost ingredients of a police case in which other state witnesses are only to corroborate. The subject of focus is the victim statement but others are only to strengthen the victim statement. The rise and fall of a police case is determined by the strength in the victim’s statement. It is the main foundation in which police build their case upon. The main victim statement is like the stem while witness statements are like branches and leaves. If the stem is cut down, the branches and leaves will also fall because their strength and survival is through the stem.”

32. Since the Complainant’s statement is admitted it will not affect the entire police case and its witness statements. Other statements are parasites on the main statement which is the Complainant’s statement. The entire case could be bungled or affected if the complainant’s statement was polluted. Here the person who has initiated the complaint, his statement is allowed and thus my ruling will base on this complaint with confirming the evidence I have on the police file.
    
33. I note the Defendant’s submission that his first pay was on 22^nd February 2019, after he accepted his employer’s offer. Now if the first pay was on 22^nd February 2019 after he had signed the contract of employment with IEA without physically commencing employment with IEA then his payment while physically on the job should be a pay continuation from where he first started accepting the offer than when he physically commenced employment. Police evidence and calculation on the money paid to the Defendant by IEA commenced from the time Defendant completed IEA form 5 and submitted to salaries on 24^th July 2019. Regardless of when Defendant was first paid and commenced employed, I will rule that Defendant was paid upon the date of acceptance of offer which was on 22^nd February 2019.
    
34. On 4^th October 2019, Defendant was paid a sum of K74,525.25 inclusive of tax as part of his end of the year entitlement. Defendant commenced employment on 10^th January 2019 when he accepted the offer from IEA and his first salary as per his submission was on 22^nd February 2019, and received his end of the year entitlement on 19^th October 2019, which was 9 months into this employment effective from the date of his offer. What is an end of year entitlement and when shall it be paid? End of the year entitlement for a contract officer in any employment is a contractual benefit in terms of monetary incentives and others prescribed in the contract of employment and it shall be made payable to the Defendant on the last payday which in most cases is pay No 26 or in some cases shall be made on the date of commencement of employment. There is nothing wrong with the payment so long as it was Defendant’s money but why pay after 9 months and before the end of the year? If there were any exceptions in the contract of employment that Defendant’s end of the year entitlement would be paid after 9 months, then I do not have that evidence with me.
    
35. Therefore, I am satisfied evidence is sufficient for the Defendant to answer the first count of stealing under Section 372(1)(7)(a) and (10) of the Criminal Code Act.
    
36. The second count of stealing was brought to the court under Section 16(1)(e) of the immigration Act. However, since the charge under the Immigration Act was struck out by the Grade 5 court for want of time limitation, the charge under this provision is also dismissed for it is not appropriate and lawful before me.
    

CONCLUSION

37. I have judiciously measured the evidence in the police file and satisfied there is sufficient prima facie evidence meeting the elements of the office of stealing under Section 372(1)(7)(a) and (10) of the Criminal Code Act and thus Defendant has a case to answer under this allegation. Evidence is satisfying the elements of the offence of stealing that Defendant while being employed by IEA had his End of Year entitlement of K74,528.25 paid after 9 months of employment rather than 12 months, money property of IEA without any defensible justifications.
    

ORDERS

38. My Final Orders

1. Evidence is sufficient to commit the Defendant for the first court of stealing under Section 372(1)(7) and (10) of the Criminal Code Act.
2. The second count of stealing under Section 16(1)(e) of the immigration Act, is dismissed as it is not appropriately before the court.

100. Bail extended.
     

.
Mel and Andrew Lawyers For the defendant
Police Prosecutor For the State

[i] District Court Act
[ii] [2021] PGDC 76;DC 6031(30^th June 2021)
[iii] Supra
[iv] Criminal Code Act 1974
[v] Supra (the case on point that specifies the contents of police file)
[vi] [2021] PGDC 103; DC6056
[vii] Supra
[viii] (2015) SC1411
[ix] Supra( Principles on the unsworn statementa)