State v Makario [1990] PGNC 36; N862 (24 May 1990)

Unreported National Court Decisions

N862

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
THE STATE
V
JAMES MAKARIO

Waigani

Jalina AJ
1-4 May 1990
7-11 May 1990
14-18 May 1990
24 May 1990

CRIMINAL LAW - Misappropriation - Application of monies for the use of another - Monies applied for purpose allocated - No evidence that it was not so applied - Strict proof required of such application.

On a charge that the accused dishonestly applied to the use of another person property belonging to another, and for false pretences.

Held

(1) A theicpplon ti proferty erty of another to the use of another person is an essential element of an offence under Section 383A(1)(a) of the Criminal Code, in addition to the element of nestymust rictly proved thad that thet the prop property was used or applied for the use of no other person than the person specified in the indictment.

(2) ټ I thencbsence of e of evidence showing that no other person than the person specified the indictment used the money, an accused person is entitled to be acquitted.

(3) &#16e accused is accordingldingly found not guilty on the first count.

(4) & At the the time he introduced the Chairman and Committeeers sied i indit and opened an account in thin the name name of e of KoruaKoruava Community School (Panialavava) he knew that there was no Community Scho Paniva ant the pthe personersons he s he introduced were not duly elected members of the Board of Management.

(5) ټ Tce ac ised is acco accordingly found guilty on the second count.

Counsel

R. Auka with him J Arnie, forState

Glio, for the Accused.

Cur adv vult

24 May 1990

JALINA AJ: The accused has been ch wied with the following counts:

1ST COUNT:

That he between the 17th day of April 1985 and the 5th day of September 1985 at Port Moresby in Papua New Guinea, dishonestly applied to the use of another, Makario Kaita Kau, Four Thousand Kina (K4,000.00), the property of the Central Provincial Government.

2ND COUNT:

That he on the 17th day of January 1987 at Port Moresby in Papua New Guinea by falsely pretending to one, ROGER GALT of ANZ Banking Group (PNG) Limited that one Makario Kaita Kau was the Chairman of Koruava Community School and Kuvari Kuve, Hauhum Moimo and Larrina Mana were Committee Members of the Board of Management of the said school induced ROGER GALT to deliver to JAMES MAKARIO, the said Chairman and the said Committee Members of the said Community School the sum of Three Thousand and Eight Kina (K3,008.00) with intent to defraud.

3RD COUNT:

That he between the 20th day of January 1987 and the 16th day of February 1987 at Port Moresby in Papua New Guinea, dishonestly applied to the use of another Makario Kaita Kau, Two Thousand Five Hundred and Eight Kina (K2,508.00), the property of the Central Provincial Government.

4TH COUNT:

That he on the 16th day of February 1987 at Port Moresby in Papua New Guinea dishonestly applied to his own use Five Hundred Kina (K500.00), the property of the Central Provincial Government.

He has pleaded guilty to the third and fourth counts. After considering the evidence before me I accept the pleas. This judgment is therefore confined to the first two counts.

THE FIRST COUNT

In 1985 whilst the accused was a nominated member of the Central Provincial Assembly, he was given responsibility over the Social and Community Welfare in five (5) districts including the Goilala District where he comes from. Funds were allocated to start a new school in the Koruava area of the Goilala District. The State has alleged that between the 17th day of April 1985 and the 5th day of September 1985 (the dates specified in the indictment) three (3) cheques totaling K4,000 was authorised to be paid to the Chairman of Koruava Community School and were in fact drawn. They were for the building of a double classroom and teacher’s residence at Koruava. There was no school at Koruava at the time. Thus here was no Chairman of Board Management of Koruava Community School. The State alleged that the accused cashed the cheques totaling K4,000 and applied the money to the use of another, namely Makario Kaita Kau, the property of the Central Provincial Government.

One of the principal witnesses for the State was Br Brendan Crowe, the current Catholic Education Secretary for the Diocese of Bereina. He begun in that position in January 1986. The part of his evidence which is relevant to this count is that as part of his responsibilities he patrolled the schools in the Goilala District. His first visit to Koruava was in the week after Easter. His second visit was in June and his third visit was in October or November 1986. After he took up his position as Catholic Education Secretary the parish priest informed him that the people of Koruava wanted a Community School and asked him to help get the school started. He visited the site where work had been began. This site was at Panialavava.

On his first visit he found that there was nobody present and he had a look at the buildings. He was impressed by several things - the site was isolated with nobody living nearby, the buildings that were up, especially the one he guessed as a classroom, was very small. It could hardly hold fifteen (15) children. The materials were entirely bush materials of poor quality. There were dust on the floor caused by insects chewing the bamboo which were young. Soft timber was used for the frame and the roof was of pandanus leaf. He could not remember if they were held together by nails or bush strings. There were three (3) buildings at the old site which was Panialavava.

His second visit to Koruava was in June 1986 where he met with the people who had gathered as they had been informed by the Cathecist, Paul Amai. At that meeting he described the situation as he saw it as Catholic Education Secretary. They discussed the old site where he had seen buildings in bush materials and the isolation and the bad state the buildings were in and the people indicated that they wanted the school to be at the Mission Station at Onionit. They then talked about starting the school there in 1987 and for such purpose he advised the people to get an educated fellow to get a sort of pre-school going for the remaining six (6) months of 1986. A boy by the name of Jimmy Kupe volunteered and within the next week people built a bush material classroom and the pre-school started. At this meeting he advised them to form a Board of Management for the school. One was formed and Paul Komai was elected chairman. He died three (3) months later and was replaced by Paul Amai.

The next witness some of whose evidence was relevant to this count was Paul Amai. The part of his evidence which is relevant to this count related to the meeting he held with the people in Koruava in 1984. This was after he returned to Koruava from Yule Island. They contributed a total of K92.00 to start a school and his father took it to Tapini and met with the accused to start the school but the accused refused to accept saying that he would assist in finding the money to start the school. His father took the money back and was returned to the people. There was no Board of Management of Koruava Community School in 1985.

He denied that the school was built at Panialavava because of land dispute at Onionit.

The evidence of other State witnesses are not relevant to the first count and therefore need not be considered.

The accused gave evidence and called two witnesses whose evidence related more to the second count. The accused does not dispute that he was the one who sought approval of the school project from the Central Provincial Government and subsequently had funds allocated. He does not dispute that three (3) different cheques totalling K4,000 were raised and he cashed those three (3) cheques and gave the money to his father Makario Kaita Kau but he says that that money was spent on building of the school including purchase of tools and other materials, payment for transport of such materials, food and payment of those who worked there. K5,000 was put in an IBD with the Westpac Bank which matured three (3) months later. He said that a list of names of those who worked were kept and brought to Port Moresby by his father and he copied the names. Although they did not keep records or indicate the amount paid to those who worked as well as their acknowledgement of receipt of the various amounts which ranged from K20 to K25, they in fact worked there. On cross-examination he maintained that he believed what his father told him and that because he was his father he would believe what ever his father told him. He said further on cross-examination that the money was spent on the school and not by his father for his own purposes because if that was the case people would have complained.

The charge is that the accused applied K4,000 to the use of another, namely one Makario Kaita Kau. It is not one where the accused by falsely pretending that there was a Community School and a Chairman of that Community School at Koruava induced the Central Provincial Government to pay the K4,000 to him or Makario Kaita Kau. There is evidence from both the State witnesses Br Brendan Crowe and Paul Amai and the accused himself that buildings were built for a school at Panialavava in 1985 and that the proceeds of K4,000 was spent in relation to the school in buying materials, food, transport and labour. Lists of names of persons who worked have also been put into evidence. Since the charge is that the K4,000 was applied to the use of another, namely Makario Kaita Kau, the application of the property for use of another person is an essential element of an offence under Section 383A(1)(a) of the Criminal Code, and, in addition to the element of dishonesty, it must be strictly proved in my opinion that that amount was used or applied for the use of no other person than the person specified in the indictment. It does not charge the accused with dishonestly applying the K4,000 to the use of Makario Kaita Kau and others. That being so it would have been necessary to have called evidence from those who are alleged by the accused to have been paid to testify as to whether they have been paid or not. In the absence of that evidence the fact that no records were kept by the accused or his father or that there was no acknowledgement of receipt of those moneys as payment for labour does not concern me unduly. The fact that there was no Chairman of Board of Management for Koruava Community School in 1985 does not concern me either. This is because the charge is not one of false pretences. In the absence of evidence showing that no other person than the person specified in the element used the money, an accused person is entitled to be acquitted. In the present case, in the absence of evidence showing that no other person than Makario Kaita Kau received the money and with the evidence that there were three (3) buildings put up for the school at Panialavava in the Koruava area, I am doubtful as to whether the amount of K4,000 was applied to the use of another, namely, Makario Kaita Kau. I must give the benefit of the doubt to the accused. I accordingly find the accused not guilty on the first count.

THE SECOND COUNT

The State has alleged that on the 27th day of January 1987 the accused and four (4) others namely Makario Kaita Kau, Kuvari Kuve, Hauhum Moimo and Larrina Mana went to the ANZ Bank, Port Moresby Branch with a PNGBC Port Moresby Branch cheque for K4,000 drawn on account of the Central Provincial Government and made payable to the Chairman, Koruava Community School, to open a Savings Account. One Roger Galt, an accountant at the bank refused to open the account for want of identification and literacy and then the accused, by falsely pretending to the said Roger Galt that Makario Kaita Kau was Chairman and the others named above were Committee Members and that he was trustee of the said school by the production of his Local M.P. Curfew pass No.264, induced him to open an account under the name of Koruava Community School (Panialavava) and then, almost immediately after the deposit of the cheque by such false pretence, induced Roger Galt to deliver K2,508.00 to the said committee members of the said school.

The State has relied on the evidence of Br Brendan Crowe and Paul Amai in support of this count. From the evidence of Br Brendan, part of which has been mentioned above in respect of the first count, it is clear that after he met with the people in about June 1986 it was decided that a school be built at Onionit and to show that people were genuine in their efforts to have a school (there) they built a classroom and commenced pre-school for their children for the rest of 1986 in preparation for the Koruava Community School to start in 1987. A Board of Management was appointed with Paul Komai as Chairman. Unfortunately Paul Komai died three (3) months later and Paul Amai took over as Chairman. Br Brendan, in his capacity as Catholic Education Secretary and member of the Central Provincial Education Board assisted the people to have a teacher ready for the 1987 school year. He also assisted them to have the Board of Management ratified by the Provincial Education Board. A properly set up and approved school commenced in 1987. There was no other community School with a Board of Management operating in the Koruava area, which includes Panialavava, at the time. A lot of Br Brendan Crowe’s and Paul Amai’s evidence related to the 3rd and 4th counts and since the accused has pleaded guilty to them I do not consider it necessary to discuss them.

The accused in his own defence said that since his father was the Chairman of the Ivani Village Court and that he did not know of a Chairman of Board of Management of Koruava Community School and as the school proposed to be built at Onionit had been shifted to Panialavava because of a land dispute over the proposed site being a traditional burial ground, he had not falsely pretended to Roger Galt that Makario Kaita Kau and the others were Chairman and Committee Members respectively and induced him (Roger Galt) to first open the account and then authorise a withdrawal and hand over to Makario Kaita Kau and others the sum of K3,008.00.

The accused being an educated man and Chief Finance Inspector prior to his becoming a nominated member, it is difficult to find that he was not aware of the Bank’s requirements for identification before a new account could be opened. It is also difficult to believe that after putting up buildings at Panialavava for a school which was not in operation, he did not enquire as to why there was no school. If he had enquired in 1986 and early 1987 he would have discovered that there was a school at Onionit which was due to commence in 1987 and that it had a Board of Management and thus handed the cheque over to that Board of Management. I find that at the time he introduced the Chairman and Committee members specified in the indictment and opened the account in the name of Koruava Community School (Panialavava), he knew that there was no community school at Panialavava, and that the persons he introduced were not duly elected members of the Board of Management. I am thus satisfied beyond reasonable doubt of the guilt of the accused and I accordingly find him guilty on the second count.

Lawyer for the State: Public Prosecutor.

Lawyer for the accused: G Emilio, Lawyers.