State v Kivoho [2005] PGLawRp 4; [2005] PNGLR 82 (22 March 2005)

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CRIMINAL LAW – Indictable offences – Criminal Code, Subdivision VI.1.C, offences analogous to stealing – Section 383A, misappropriation of property – Accused pleaded not guilty to misappropriation of K31,500.00, allegedly the property of a company – Prosecution's case consisted of 16 exhibits, tendered by consent – Submission of no case to answer – Application that case should be withdrawn from the tribunal of fact – Rule in Rape's case – Two limbs or tests – Question 1: whether there is some evidence of each element of the offence which, if accepted, would either prove the element directly or enable its existence to be inferred – Question 2: whether there is sufficient evidence on the basis of which the court ought to convict the accused – Defence based submission on second limb – Elements of the offence of misappropriation – Application of test in Rape's case – Ruling – Evidence is so weak and unreliable that no reasonable tribunal of fact could base conviction on it – Acquittal.

The accused was charged with a criminal offence of dishonestly misappropriating a sum of money belonging to Arowe Holdings Ltd (the company). He pleaded not guilty.

The accused and the company entered into an oral agreement in which the accused was appointed as this company's shipping agent in Buka, Bougainville Autonomous Region. The accused allegedly raised and forward to Bougainville Administration an invoice for the company. The amount in the invoice was paid to the accused, through his own company. He applied the money to his own use.

1. In a no-case submission the following tests apply:-
Is there some evidence of each element of the offence which, if accepted, would either prove the element directly or enable its existence to be inferred? If the answer is No, the conclusion will be that on the evidence as it stands the accused could not lawfully be convicted. If the answer is yes, the trial should proceed, unless the second test is answered in the negative.

2. Although there is a case to answer, is there sufficient evidence on the basis of which the court ought to convict the accused? If the answer is yes, then the trial must proceed.

If the answer is No, the trial judge has a discretion to either not call upon the accused or order the trial to proceed. In other words where there is only a scintilla of evidence or where the evidence is so weak or unreliable that no reasonable tribunal of fact could base a conviction on it, he can stop the trial.

3. Whilst the first test was held in the affirmative, on the second test, the evidence as it stands is so weak and unreliable that no reasonable tribunal of fact could convict the acused on it.

Cannings J. This is a ruling on a no case submission by a man who is facing an indictment that he dishonestly misappropriated K31,500.00, the property of a company.

The transaction giving rise to the charge occurred in Buka and involved an allegedly false invoice.

On 18 March 2005 he was brought before the National Court and faced the following indictment:

Nathan Kovoho of Gagan village, Buka Island, Papua New Guinea, stands charged that he ... between May 1997 and June 1998 at Buka town ... dishonestly applied to his own use K31,500.00 in cash belonging to Arowe Holdings Ltd.

The following allegations were put to the accused for the purpose of obtaining a plea.

In 1997 the accused was running various businesses in Buka. He contacted a company based in Kimbe, Arowe Holdings Ltd, and entered into an agreement to be its agent in Buka. The company operated a boat, the MV Pelpel, which was being used to transport supplies between Lae and Buka. The work was done for the Bougainville Administration. The MV Pelpel needed some work done on it. He was required to transfer money from services rendered by the MV Pelpel to a bank account in Kimbe. The accused transferred some of the money. Then a problem arose. In January 1997 the company terminated the agreement between it and the accused. However the accused was still obliged to transfer the balance of the money owing to the Kimbe bank account. Instead of transferring the money as required, he raised an invoice for K31,500.00 in the name of one of his businesses, Buka Newsagency, and presented it to the Bougainville Administration. The Administration paid the money to the accused's business, Buka Newsagency. Then he applied it to his own use. The money, in fact, was meant for and belonged to Arowe Holdings Ltd. At all times the accused acted with a dishonest intention.

The prosecution then presented its evidence. This consisted of 16 documents, including the record of interview of the accused, all tendered by consent. No oral evidence was called.

Mr Siminji then made a no case submission, based on the principles set out in the leading case, The State v Paul Kundi Rape [1976] PNGLR 96. Mr Rangan responded.

I will start by setting out the principles in Rape's case, which consist of two limbs or tests. They each require the court to consider the state of the evidence so far presented and to compare it with the elements of the offence with which the accused is charged. I will summarise the evidence the prosecution has presented. I will set out the elements of the offence of misappropriation that must be proven. Then I will summarise the actual no-case submission and apply the principles in Rape to this case.

In Rape's case O'Leary AJ pointed out that when the prosecution has closed its case two distinct and separate questions can arise.

Question 1 – also called the first limb or test – is there some evidence of each element of the offence which, if accepted, would either prove the element directly or enable its existence to be inferred?

Note that the question is not: is every element of the offence established beyond a reasonable doubt? That question can only be answered at the end of the trial – if it proceeds – on the whole of the evidence, ie including any evidence adduced by the accused.

If the answer to question 1 is no: the conclusion will be that on the evidence as it stands the accused could not lawfully be convicted. This is an issue of law. The accused will have no case to answer. The accused will not be required to answer the charge. The accused will be entitled to an acquittal.

If the answer to question 1 is yes: the trial should proceed unless question 2 is answered in the negative.

Question 2 – also called the second limb or test – although there is a case to answer, is there sufficient evidence on the basis of which the court ought to convict the accused?

Again, the question does not ask whether the prosecution has proved its case beyond reasonable doubt. It is directed at the situation where there is only a scintilla of evidence or where the evidence is so weak or unreliable that no reasonable tribunal of fact could base a conviction on it.

If the answer to question 2 is no, ie there is insufficient evidence: the trial judge has a discretion to either not call upon the accused (ie enter an acquittal) or order the trial to proceed.

The Supreme Court confirmed the correctness of the above principles in The State v Roka Pep (No 2) [1983] PNGLR 287, Kidu CJ, Kapi DCJ, Andrew J, Pratt J, Kaputin J; and Joshua Yaip Avini and Plaridel Nony Acosta v The State [1997] PNGLR 212, Kapi DCJ, Los J, Salika J.

Recent National Court cases in which the Rape principles have been applied include The State v Tauvaru Avaka (2000) N2024, Gavara-Nanu J; The State v Henry Osare Kales (2001) N2115, Kirriwom J; The State v Robert Tamtu (2001) N2166, Lenalia J; The State v Kwale Dire (2001) N2178, Gavara-Nanu J; The State v Tom Kakawi and Others (2002) N2229, Lenalia J; The State v Michael Herman and Albert Paul (2003) N2475, Lenalia J; The State v Eddie Sam (2004) N2521, Lenalia J; The State v Nerius Patrick (2004) N2611, Sevua J; The State v Atau Gore (No 1) (2004) N2639, Manuhu AJ; The State v Tolly Amindi (2004) N2683, Kandakasi J; and The State v Thomas Sanage and Others (2005) N2805, Cannings J.

Strictly speaking it is only the first limb of Rape's case that gives rise to a no case submission. However, it has become the norm to refer to and rely on both limbs when a no case submission is made (see Roka Pep (No 2) per Kidu CJ).

The prosecution's evidence consisted of 16 exhibits, the contents of which are described in the table below.

Column 1 of the table gives the exhibit number; column 2 describes each witness; and column 3 summarises their evidence.

Exhibit	Witness	Evidence
A	Greg Aigilo	Statement by Acting Secretary, Arowe Holdings Ltd (the company) - in May 1996 the company entered into an agreement with Pineacre Pty Ltd, a company owned by the accused - the company's ship, MV Pelpel, was to act as agent for the company - main duty was to collect charter funds from National Emergency Service and Bouganville Transitional Government - the company terminated the arrangement in January 1997 - in May 1997 another business owned by the accused, Buka Newsagency, which had no business dealings with the company, submitted a claim for K31,500 re charter of MV Pelpel.
B	Paul Nakmai	Statement by self-employed person - engaged by the company to assist in reconciliation of funds owning to the company by Bougainville Transitional Government -visited Buka in July 1997 - confirmed from Philip Mapa that the accused had instructed Mr Mapa to make a payment of K31,500.00 to Buka Newsagency, instead of Pineacre Pty Ltd
C	Petrus Kaoloka	Statement by former managing director of Menvuvu Pty Ltd, a major shareholder of Arowe Holdings Ltd - upon termination of the accused as agent of the company he received a cheque for K31,500.00 from the National Emergency Service, which he has never released to the company.
D	Kevin Steven Latu	Statement by the company's lawyer - the accused lodged an invoice in the name of Buka Newsagency for K31,500.00 - this was the balance of the payment for voyage No 425 [sic] of MV Pelpel - Buka Newsagency was not a party to the charter agreement and had no legal claim to the money.
E	Mathias Pihei	Statement by the Acting Assistant Secretary, Division of District Services - responsible for care centre operations on Bougainville - final payment for MV Pelpel voyage No 5 was made in about January 1996 - no money outstanding for MV Pelpel.
F	Anthony Ropa	Statement by provincial accountant - payment of K31,500.00 to Buka Newsagency was for charter of MV Pelpel.
G	Mike Vucho	Statement by Detective Sergeant, Buka Police Station - corroborator at interview of accused on 30.03.98
H	Kandi Kinim	Statement by Detective Sergeant, National Fraud Squad - interviewed the accused on 30.03.98
I	Accused	Record of Interview - said little - exercised right to remain silent.
J	Document	PNGBC cheque for K31,500.00: Bougainville Transitional Government/Buka Newsagency, 16.05.97
K	Document	Bougainville Administration finance form - K31,500.00 - re care centre administration - payment for voyages 4 and 5.
L	Document	General Expenses form - K31,500.00 - re Buka Newsagency
M	Document	Invoice - Buka Newsagency - K31,500.00 - outstanding amount due for charter voyages 4 and 5.
N	Document	Bougainville Transitional Government - payee history report - 19.12.97 - showing payment for K31,500.00 on 15.05.97 - outstanding payments on voyages 4 and 5.
O	Document	Bougainville Transitional Government - cheque usage report.
P	Document	Bank statement - Bougainville Transitional Government PNGBC account.

The indictment was presented under Section 383A (misappropriation of property) of the Criminal Code.

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

(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.

(2) An offender guilty of the crime of misappropriation of property is liable to imprisonment for a term not exceeding five years except in any of the following cases when he is liable to imprisonment for a term not exceeding 10 years:—

(a) where the offender is a director of a company and the property dishonestly applied is company property; or

(b) where the offender is an employee and the property dishonestly applied is the property of his employer; or

(d) where the property dishonestly applied is of a value of K2,000.00 or upwards.

(a) property includes money and all other property real or personal, legal or equitable, including things in action and other intangible property; and

(b) a person's application of property may be dishonest even although he is willing to pay for the property or he intends to restore the property afterwards or to make restitution to the person to whom it belongs or to fulfil his obligations afterwards in respect of the property; and

(c) a person's application of property shall be taken not to be dishonest, except where the property came into his possession or control as trustee or personal representative, if when he applies the property he does not know to whom the property belongs and believes on reasonable grounds that such person cannot be discovered by taking reasonable steps; and

(d) persons to whom property belongs include the owner, any part owner, any person having a legal or equitable interest in or claim to the property and any person who, immediately before the offender's application of the property, had control of it.

Mr Siminji submitted that a no case submission should be upheld in two situations. First if there is no evidence or no more than an iota of evidence to support one or more of the elements of the offence. Secondly, if there is more than an iota of evidence, but the Judge really has no weighing of evidence to do by reason of the State's evidence being so tainted or so obviously lacking in weight or credibility that no reasonable tribunal of fact could safely use it as the basis of a conviction.

Mr Siminji relied on the second of the two situations, which equates to the second limb of Rape's case. His principal arguments were:

· There is insufficient evidence that the property allegedly dishonestly applied (ie the K31,500.00) was the property of Arowe Holdings Ltd. The prosecution case appears based on the opinion of Mr Latu (witness D). However, there is no independent evidence to support his opinion.

· There is no evidence to show that Arowe Holdings Ltd is a legal person. The Court does not know whether it is, in fact, a company.

· If the accused were called to explain – which by law he is not required to – the State's case would not improve.

· The claim that the money was owed to Arowe Holdings Ltd is lacking particulars.

The court should therefore exercise its discretion to stop the case, Mr Siminji argued.

Mr Rangan submitted that all that the prosecution needs to establish at this stage is that there is more than a scintilla of evidence and it is not shaky and unreliable. He said that the evidence met those low standards, in that there is evidence that the accused raised an invoice in respect of services provided by the MV Pelpel. He referred, in particular, to exhibits A and L.

The safest course of action, Mr Rangan submitted, is to refuse the no-case submission and allow the trial to proceed.

I will now apply the principles of Rape's case. I will not concern myself with the question of whether there is some evidence of each of the elements of the offence. I presume that there is some evidence, as the defence is basing its submission on the second limb of Rape. The question is whether there is sufficient evidence on which the court ought to convict the accused.

I find myself persuaded by Mr Siminji's submissions. The evidence is very scanty. There is no independent evidence of the agreement between Arowe Holdings Ltd and the accused. It was evidently an oral agreement. But when was it entered into? What were its terms? Who actually entered into the agreement? As to the money alleged to have been misappropriated, there is insufficient evidence to link the sum of K31,500.00 to Arowe Holdings Ltd. Where is the evidence that the accused acted dishonestly? Where is the evidence that Arowe Holdings Ltd was, at the relevant time, a company, capable of owning property? There is also insufficient evidence to link the accused to Buka Newsagency. If the prosecution is to obtain a conviction in this case, it will be asking the court to draw too many inferences based on supposition rather than evidence. In view of the condition of the evidence, and given that the contentious transactions occurred eight years ago, it is a pointless exercise for the case to proceed.

I answer the second limb of Rape by saying 'no, there is insufficient evidence on which the court ought to convict the accused'. The evidence is so weak and unreliable that no reasonable tribunal of fact could base a conviction on it. The trial should be stopped. I exercise my discretion to enter an acquittal. The no-case submission is upheld.

The order of the National Court is that Nathan Kovoho is acquitted of the charge of misappropriation.

Lawyer for the State: Public Prosecutor.
Lawyer for the accused: Public Solicitor.

Papua New Guinea Law Reports

State v Kivoho [2005] PGLawRp 4; [2005] PNGLR 82 (22 March 2005)