State v Morris [1997] PGNC 155; N1743 (27 November 1997)

Unreported National Court Decisions

N1743

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR. 1440 OF 1995
THE STATE
-V-
BOB MORRIS

Madang

Bidar AJ
27 November 1997

CRIMINAL LAW - MISAPPROPRIATION - two counts - Dishonesty offences - Relevant principles.

CRIMINAL LAW - Evidence - Documentary Evidence - Tendered by Consent.

CRIMINAL LAW - Evidence - circumstantial - Inferences available and weight thereof - Inferences determined by common sense.

Cases Cited

Paulus Pawa -v- The State [1981] PNGLR 498 at 501

State -v- Tom Morris [1981] PNGLR 493

Barca -v- The Queen [1975] HCA 42; (1975) 50 A.L.J.R. 108

The State -v- Peter Noki Manda and William Henry Langer N 805

State -v- Simon Sulu Uraken and Jack Charles Joku N 883

Counsel

Mr J. Pambel, for the State.

Mr D. Sakumai, for the Accused.

JUDGEMENT

27 November 1997

BIDAR AJ: The accused BOB MORRIS pleaded not guilty to two charges of Misappropriation pursuant to s. 383 A (1) of the Criminal Code Act (Ch. No. 262). He is charged that on the 10 September 1993 he dishonestly applied to his own use the sum of K1000.00 the property of the Independent State of Papua New Guinea. He is also charged that on the same day he dishonestly applied to the use of one, JOE VIAKEN, the sum of K8000.00 the property of the Independent State of Papua New Guinea.

THE ALLEGATIONS

The State alleges that on or about 26 June 1992 at Madang, a claim was lodged by Lutheran Development Services Lae with Madang Provincial Government for an amount of K10,000.00. The claim was for supply of materials and construction of Gumbrambi Sub-Health Centre in Tauta Sub-District. Due to insufficient funds the claim could not be paid and was shelved. On or about 10 September 1993, the accused at the time was employed as Certifying Officer with Division of Finance, Department of Madang, brought in a claim from Andanda Building and Maintenance, for exactly the same services rendered by Lutheran Development Services for an amount of K10,000.00. He handed the claim to one of his colleagues who processed it for payment. From this claim, a cheque for K9000.00 was drawn in favour of Andanda Building and Maintenance of which Joe Viaken was its principal. Accused took the cheque and delivered it to Joe Viaken. Joe Viaken after going to the bank paid accused K1000.00 from the proceeds of the cheque.

It is State’s allegation that, accused assisted and or conspired with Joe Viaken to lodge and process false claim so that, he could be assisted with some money as he had court proceedings against him on or about the same time. Mr Joe Viaken also paid Jerry Mark K1000.00 for his assistance in processing the claim. It is \alleged that accused dishonestly applied to his own use the sum of K1000.00 the property of the State and also dishonestly applied the use of one, Joe Viaken, the sum of K8000.00, the property of the State.

EVIDENCE

The State’s case consist of eleven (11) witnesses statements and seven (7) documents tendered by consent. The first witness Leo Watah Namun. He left Madang in August 1993 one month before the commission of alleged offences. At best he could recall was that Madang Provincial Supply and Tenders Board approved the construction of Gumbrambi Sub-Health Centre by Lutheran Development Services based in Lae. That payment voucher was raised in 1992 but due to insufficient funds the claim was shelved pending availability of funds. When the claim was paid, he was no longer in Madang and did not know what happened.

The second witness was Malagui Tamilong. He was the Assistant Secretary Planning. He recalls sighting the claim by Lutheran Development Services and as a financial delegate he signed the payment voucher. He was surprised to learn that the payment was made to Joe Viaken, the principal of Andanda Building and Maintenance, instead of Lutheran Development Services at Lae.

The third witness statement was that of Luke Kalawa. He is the acting Audit Inspector with Finance Division at Madang. At the relevant time, he was attached to Accounts Section as Accounts Clerk. His duties included, examining all payment vouchers for both Provincial and National Claims. He recalls examining claim by Lutheran Development Services for sum of K10,000.00. In September 1993, Mr Edward Soko, Examiner in charge told him something was wrong. He had some papers in his hand. He handed witness the papers, which were original paid vouchers in the name of Andanda Building and Maintenance. The top part was paper pasting with Contractor’s name written on it. He noted it was the same claim he examined in 1992 the claimant being Lutheran Development Services, which was shelved because of insufficiency of funds. Witness personally knows the proprietor of Andanda Building and Maintenance, who comes from the same District. In fact Andanda had lots of claims with Finance (B.M.S.). Witness reported the matter to his superiors and held the documents until he handed them to the Police.

The fourth witness statement is that of Peter Rekon. He was acting Certifying Officer with Finance at the time. In 1993, he was attached to the Works Co-ordinator’s Office as Transport Officer. He recalls one day Mr Joe Viaken approached him with some papers, which he handed to him. These papers were payment vouchers for Lutheran Development Sub-Health Centre in Tauta Sub-District. Mr Joe Viaken asked witness to help him push the claim through which the witness refused. He advised Joe Viaken against it. Clearly it was somebody else’s claim and witness wanted no part in it.

The fifth witness statement is that of Edward Soko. He is the Examiner/Accounts Clerk with Finance Division, Madang. In February 1993, he examined a claim by Lutheran Development Services for construction of Gumbrambi Sub-Health Centre at Tauta.

After examining the claim, he changed the vote number 583 - 2201 - 225 to 283 - 4201 - 1102 - 321 which was the funding vote for domestic debts. This was necessary to pay off outstanding claims for previous years. Place the claim among others in the tray to be sent to Works Co-ordinator’s Office to screen and prioritze. In September 1993 whilst picking up travelling allowances and cash advance cheques, he noticed the payment in question registered in the cash sheet. He checked further and located payment voucher where payment was made to Andanda Building and Maintenance other than original claimant i.e., Lutheran Development Services. He informed Mr Luke Kalawa of what he discovered. He also referred the matter to his superiors.

The sixth witness statement is that of Elizabeth Wapunai. She was the Accounts Commitment Clerk. She recalls 10 September 1993. She received a payment voucher from the accused who advised her to commit it which she did. It is her normal duty to do so. The payment voucher was under the name of Andanda Building and Maintenance. Some hours later, during the day, accused approached the witness with a PNGBC cheque for K9000.00 for her to counter-sign which she did, as it is her normal duty to do so and left it with the accused.

The seventh witness statement was that of Joan Walei. She was the Business Development Officer, with Division of Commerce. In 1993 between 20 January and mid September, she was attached with Division of Finance as Accounts Clerk, and deployed to the Cash Office. One of her duties was to sign all government cheques released from Finance Division in Madang. The cheques are normally brought to her by Certifying Officer who at the time was the accused. It was during that period she signed a PNGBC cheque No. 120989 for sum of K9000.00 which was made payable to Andanda Building and Maintenance. The cheque was among batch of cheques brought to her for endorsement.

The eight witness statement is that of Jerry Mark. He was the Certifying Officer with Division of Finance. On the 10th of September 1995, whilst he was on duty in his office, accused approached him with payment voucher in the name of Andanda Building and Maintenance. Accused deposited the claim with the witness without any explanation and left. Since accused was also Certifying Officer, witness was of the view the claim had been checked so he pushed the claim through the system. Sometimes in the afternoon, accused and Joe Viaken called him out of the office and Joe Viaken gave him K1000.00 which he accepted. This was in appreciation for whiteness’s assistance in processing the claim. Clearly, it seems this witness is an accomplice. For whatever reason he was not charged, there is no explanation available to Court. After receiving K1000.00 from Joe Viaken he wondered whether the claim was a genuine one. He found out it was not.

I think, what really happened was that when the news got around, he had to come up with something to cover up, so he explained it was a false claim processed and paid. Part of which he received. Clearly, he is an accomplice and should have been charged. I warn myself to treat his statement with caution. Principles relevant to accomplice evidence require corroboration. I caution myself in considering his evidence.

Ninth witness statement is that of Kekoi Kiaboro. He was the Finance Officer with Division of Finance at Madang. His evidence is basically explaining the procedure, when a claim is lodged and the process it goes through until collection or despatch. Mistakes can be easily detected as it is an intricate process, the claim goes through.

The remaining statements belong to the Investigating Officer and the Corroborator in the record of interview. Their statements recite the usual steps taken in conducting a record of interview.

The documents which went into evidence by consent are, record of interview Pidgin and English translation, Payment Voucher, Provincial Requisition for Expenditure (FF3), Quotation to Department of Works from Steamships Hardware Co., Invoice Statement, PNGBC Cheque No. 120989 for amount of K9000.00 made payable to Andanda Building and Maintenance and a PNGBC Deposit Form made out by ANDANDA Building and Maintenance depositing a cheque for K9000.00.

Basically, the State’s evidence is that Joe Viaken gave the claim to the accused on or about 10 September 1993. The accused in turn left the claim with one Jerry Mark who processed it. Accused later in the day, picked up the cheque for K9000, made payable to Andanda Building and Maintenance. He took it to Elizabeth Wapunai, who endorsed it, as it is her normal duty to do so and also accused normal duty to deliver cheques for endorsement. Accused then paid the cheque in question to Mr Joe Viaken possibly at B.M.S. Offices. Mr Joe Viaken deposited the cheque into his ANZ bank account, got same day clearance and withdrew K3000.00. He (Joe Viaken) gave K1000.00 to the accused possibly to help him out with his adultery case. He also gave K1000 to Jerry Mark for his assistance in processing the claim. The evidence is essentially circumstantial one which the State’s case hinges on.

After the close of State’s case, defence counsel made a no case submission which I rejected. Accused than elected to give evidence on Oath.

Accused evidence is that he commenced working with Division of Finance in 1984. On or about 10 September 1993, he worked as Certifying Officer still with the Division of Finance in Madang. On or about the same day, he was approached by one Joe Viaken and given a claim for construction of Gumbrambi Sub-Health Centre by Andanda Building and Maintenance for the sum of K10,000.00. Note that claim for exactly the same amount and rendering the same services was lodged by Lutheran Development Services in 1992. It was not paid due to insufficiency of funds and had to be shelved, pending availability of funds. Because accused was to attend his Court on the same day, in the Madang District Court, he gave the claim to Jerry Mark, also Certifying Officer with Finance Division.

It seems that Jerry Mark had the claim processed and when accused returned from attending his case, the cheque for sum of K9000.00 was ready and was among other batch of cheques. As it is his normal duty, he picked up the cheque in question with others and delivered them to the signing officers to sign them which they did. He then took the cheques including the cheque in question for delivery and dispatch. Sometimes thereafter, he paid one Joe Viaken the cheque of K9000.00. It is unclear as to the exact location the cheque was paid to Joe Viaken and whether the recipient is required to sign any document including receipt of payment. Sometime later during the day, Joe Viaken approached the accused presumably at B.M.S. Offices and gave him K1000.00. The reason accused was given K1000.00 was to help him out with his Court case which Joe Viaken learnt about earlier in the day, presumably at the time he gave the claim to accused, who told him about it. Accused does not know of the reason, Jerry Mark was also given K1000.00. State’s evidence show that Jerry Mark received the claim from the accused who had not given him any explanation, but processed the claim by going through the usual process. Accused denies that there was any conspiracy between him and Joe Viaken to lodge and process fraudulent claim and benefit from it. He also denies any assistance given to Joe Viaken to process the claim. All he did was that Joe Viaken gave him the claim and he handed the claim to Jerry Mark because he was attending his adultery case at the District Court. After the court case, he picked up the cheque, had it signed by officers responsible and had the cheque in questioned paid to Joe Viaken. If any assistance, it was Jerry Mark who actually processed it. If Jerry Mark was diligent, he would have noticed that a different claimant’s name was pasted.

Irrespective of the absence of evidence of handwriting expert, it is obvious claimant’s name and address has different writing from the writing on the rest of payment voucher. Joe Viaken is well known to the accused as well as other officers at Finance as he is their regular client. He had lots of claims for services rendered and work performed. Accused denies any knowledge of an attempt by Joe Viaken to lodge a false claim when he approached Mr Peter Rekon. And surprisingly, Peter Rekon had never informed anybody about it. When cross-examined if he had seen the claim before, he said he believes so. He may have.

It is clear the State’s case against the accused is circumstantial one. There is no direct evidence of conspiracy between accused and one Joe Viaken. There is really no evidence to show accused actively involved himself in going about assisting Joe Viaken except handing the claim to Jerry Mark and collecting the cheque and giving it to Joe Viaken, which, apart from anything else, was part of his duty as a certifying officer to do so.

The law on circumstantial evidence is as stated by Supreme Court in Paulus Pawa -v- The State [1981] PNGLR 498, where Andrew, J. said at p. 501 - “I am in agreement with Miles, J. in The State -v- Tom Morris [1981] PNGLR 493 at 494 when he said:

I take the law as to circumstantial evidence in Papua New Guinea to coincide with what was said in the High Court of Australia in Barca -v- The Queen [1975] HCA 42; (1975) 50 A.L.J.R. 108 at 117:

“When the casenst an t an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless thcumstances are such as to be inconsistent with any reasonable hypothesis other than the guie guilt of the accused: .... to enable jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be the only rational inference that the circumstances would enable them to draw. However an inference to be reasonable must rest in something more than conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon consideration of all facts in evidence. ..... .”

The principles are well settled in Papua New Guinea. See The State -v- Peter Noki Manda and William Henry Langer N 805 and State -v- Simon Sulu Uraken and Jack Charles Joku N 883 (25.6.90).

It is clear, the Judge as a tribunal of fact has to decide whether the guilt of the accused is the only rational inference to draw on all the facts in evidence. It is my view that because there are competing inferences to be drawn, the Judge as a tribunal of fact should not be told to acquit. It is his duty to decide which inferences to draw and which to reject, which are reasonable and which are mere conjecture, and whether they are in favour of the accused. At the outset, I warn myself of the dangers of convicting on circumstantial evidence. I should be mindful not to draw inferences on mere conjecture but any inferences to be drawn be on facts and be reasonable. As the evidence stands, accused was given the claim by Joe Viaken.

Accused gave the claim to Jerry Mark as he was attending his court case. After court case, he picked up the cheque had it signed by persons authorised to do so and paid the same to Joe Viaken. This is not unusual it is his normal duty to do so. Accused was later given K1000.00. This was the first time accused was given such large sum of money by Joe Viaken. Joe Viaken also gave K1000.00 to Jerry Mark. If anything, Jerry Mark was the person who actually processed the claims. If there was anything wrong with the claim, he should have identified it. It seems to me he had a lot to do with it than the accused. There is no doubt, Jerry Mark is an accomplice and for whatever reason he was given K1000.00, is difficult to comprehend. Simply processing the claim which is his duty to do so, does not and cannot cost the claimant K1000.00. On these facts and other circumstances, State urges me to draw an inference that the only rational one is the guilt of the accused beyond reasonable doubt. The evidence before me is scattered all over and I am to determine, if I could join it, and connect it with accused and the alleged offences. I cannot do so if there are a lot of missing links which are not surfaced but submerged.

Having considered all the evidence thoroughly, I find I am threading on dangerous ground, and it is dangerous to convict on such circumstantial evidence. As such, it would be unreasonable to draw an inference which is other than the guilt of the accused beyond reasonable doubt.

Accordingly, I find the accused not guilty of both counts. He is acquitted and discharged. He be refunded his bail.

Lawyer for the State: PUBLIC PROSECUTOR

Lawyer for the Accused: a/PUBLIC SOLICITOR