State v Vevo [2007] PGNC 1; CR 399 of 2000 (6 March 2007)

Four cheques totalling K126, 402.71 were stolen from the Internal Revenue Commission's Rabaul warehouse, endorsed on the reverse with the impression of a Customs stamp, the words "Pay Keake Enterprises" an unidentified signature and delivered to Keake Enterprises where the manager, Peter Oh, gave them to the receptionist to bank in the company's account. To conceal the theft of the cheques from the drawer, customs warehouse receipts made in payment of the drawer for other payments, were altered to also include details of the stolen cheques. A fifth cheque, not presented in evidence, was said by the receptionist to have been given to her by the accused then presented by her to the ANZ bank for deposit into her personal account and that this cheque was given to her by the accused. Two bank officers evidence contradicted the receptionist in that they said the fifth cheque was also presented for deposit to the account of Keake Enterprises. The accused made a "no case" submission.

1. There is no direct evidence that the accused was the person who stole the cheques and altered the receipts;

2. The "similar fact" evidence is circumstantial. The guilt of the accused is not the only rational inference to be drawn from the evidence;

3. The court could not rely solely on the evidence of the receptionist as her evidence is partly contradicted by the State's own witnesses and in other circumstances she might have been a co-accused of the accused.

4. There was no, or only a scintilla of evidence that it was the accused who stole the cheques, endorsed them and gave them to Peter Oh of Keake Enterprises.

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1. LAY J: The accused has been indicted on four counts of misappropriation of cheques the property of Internal Revenue Commission, to which he has pleaded not guilty.

2. He was the Senior Warehouse Supervisor for Internal Revenue Commission in Rabaul. Duties of the warehouse personnel included collection of import duty and excise duty on petroleum products. This involved staff going to the premises of petroleum companies and dipping tanks. Cheques in payment of duty would sometimes be dropped off by clients at the IRC warehouse and the receipt left in a client’s pigeon hole at the IRC warehouse after being issued by the cashier. Receipts could stay there for up to 3 days before being collected by the client. Occasionally receipts were delivered by officers who were going to clients’ premises on duty.

3. During the period that the accused was employed at the IRC warehouse four cheques made out by BP Papua New Guinea Ltd on its Westpac Account were endorsed on the reverse with the words "Pay Keake Trading", an IRC stamp impression, initialled or signed by a person unknown and deposited into the account of Peter Oh trading as Keake Enterprises on instructions issued by Peter Oh to his receptionist who did the actual banking. There is no direct evidence of how Peter Oh obtained the cheques.

4. The theft of the cheques from IRC was partly hidden by an unknown person endorsing official receipts, issued by IRC to BP Papua New Guinea Limited for other payments, with the details of the cheques which were stolen, either by changing or adding to the information on the original receipt. Thus BP Papua New Guinea Limited would ultimately receive an original receipt for all of its payments. But the book fast copy held by IRC of those original receipts showed only the original data entered by the cashier which disclosed substantially lower payments and not the data relating to the stolen cheques.

5. So someone stole the cheques, endorsed them and altered the receipts. Opportunity to do this presented itself to anyone in the IRC Warehouse with access to the cheques delivered for payment and the written out receipts sitting in the pigeon hole waiting for collection and the stamp used for endorsement on the back of the cheque. Opportunity also existed for this to be done by any person in BP Papua New Guinea Limited with similar access to both IRC receipts and BP cheques who also had access to an IRC Collector of Customs stamp.

6. "Similar fact" evidence was given by Peter Oh’s receptionist, Betty Dickson, in these terms:

"I think there was another cheque for K17,000 or K16,000, the amount on it but I cannot recall. The cheque was payable to Customs by Bp Papua New Guinea Ltd. The cheque was given to me to be deposited into my account. I cannot remember who gave it to me, if it was Peter Oh or Bill. I remember now the cheque was K16,000 plus and I was told the cheque was to be deposited into my account. I was given the cheque by the person who initialled the cheque and if I deposited the cheque to my account I will receive commission. (that person) was Bill Vevo. I took the cheque to ANZ bank but it was rejected, my account was closed. (XN) The 4 cheques deposited were given to me by Peter Oh.(Court) After the cheque was rejected by ANZ a day later I gave back the cheque to Bill.

7. The Statement of Hellen Namaliu tendered into evidence by consent confirms the presentation of cheques 164485, 166470 and 167120(the latter not the subject of these proceedings) to her as a teller at the ANZ bank. Stanley Iias, then the branch accountant of the ANZ bank also spoke to Betty about the presentation of cheque number 167120 which was for K 16,476.72. Both bank officers say in their statements tendered, by consent, by the State, that Betty was attempting to present the cheque for deposit to the account of Keake Enterprises.

Cheque No.	Amount in Kina	Receipt No.	Alterations to Receipt
159858	13,517.99	8278	K17.31 changed to K13,517.99 and chq no. added
162273	24,928.44	8452	0.61t changed to K24,928.44 chq. No. inserted
164485	15,881.82	58211	Chq. No. and amount added (incorrectly), total amended
166470	72,074.46	59264	Chq no. and amount added, total amended.

9. The initial or signature on the back of each of the cheques is different. The words "Pay Keake Trading" could be by the same hand, but I would not hazard an opinion without expert evidence. The accused denied in his record of interview that any of the initials or signatures were his or that he had possession of the stamp used on the back of the cheques, which reads "Papua New Guinea Collector of Customs Passed [date] Rabaul". He said that was the Cashiers stamp and the stamp he had was the "Warehouse" stamp. He denied giving any of the four cheques to Peter Oh. He denied altering any of the receipts although he admitted he did deliver receipts to clients when attending to duties.

10. In his record of interview the accused admitted that during his recreation leave he had acted as a customs officer for Gold Star Shipping to assist Peter Oh, with approval from his "number two boss". He did the work in the company’s office. He said he did that along with other officers.

11. No objection was taken to the admissibility of the similar fact evidence, which I consider to have been correct, because it is admissible when the facts are strikingly similar in the sense that the similar facts show such a striking similarity or such an underlying unity that, if accepted, would in common sense be inexplicable on grounds of co-incidence: Phipson on Evidence par (17-32); 14th Ed. Sweet and Maxwell. The striking similarity should be to unusual and not common place features of the facts in issue: State v Paul Ipor Daniel [1988-89] PNGLR 580. It does not matter that the similar facts took place after the facts in issue: Phipson on Evidence 14th edition, par (17-53). I consider that the evidence adduced by the State meets those requirements. Any cheque would not do, but a cheque which is from the same company in favour of the same payee endorsed in the same manner as the cheques in issue seems to me to meet the test of similar unusual features. The unusual aspect is that a cheque payable to Government is endorsed for payment to a private company, which I consider a most unusual circumstance.

12. Many cases set out the principles to be applied in considering a no case submission. Counsel for the Defendant has referred me to The State v Paul Kundi Rape (infra). It is unfortunate the Supreme Court in The State V Roka Pep [1983] PNGLR 287 was not able to publish a joint judgment. However the following conclusions by the Chief Justice Sir Buri Kidu in which Andrew J concurred also appear to encompass the views of Pratt and Kaputin JJ, but not the views of Kapi DCJ(as he then was):

(1) The principle is discussed in The State v. Paul Kundi Rape [1976] P.N.G.L.R. 96 and it is simply this: If, after the close of its case the State has failed to adduce evidence in support of one element of the offence charged, there is no case for the accused to answer and as a matter of law he/she must be acquitted.

(2) Yes, there is a discretion in a trial judge to stop a case although there is some evidence adduced by the State in support of each element of the offence charged. The principle is also discussed in The State v. Paul Kundi Rape [1976] P.N.G.L.R. 96. This discretion may be exercised in a case where there is a mere scintilla of evidence that the evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on it."

13. The state of the evidence in this case it is that there is no evidence which directly or inferentially connects the accused to the four cheques he is alleged to have misappropriated, as charged in the indictment. There is no handwriting evidence to suggest that the endorsements on the cheques are his, or that he has unexplained wealth, or that he was seen frequenting the premises of Keake Enterprises or in the company of Peter Oh shortly before each of the cheques was given to the receptionist to bank. There is no direct evidence that he had access to the cheques which were misappropriated although inferentially he would have. There is some evidence that he would have access to the receipts which were altered as part of the scheme. However, in the accused record of interview, which went into evidence by consent in the State case, he raised that he had no access to the stamp which appeared on the back of the cheques together with the endorsement. There has been no evidence led to rebut that allegation apart from Betty's evidence that the fifth cheque was similarly endorsed to the other four cheques.

14. The only evidence which might be said to connect the accused with the offences alleged in the indictment, in any way, is the similar fact evidence that he produced a cheque drawn on the same bank account by the same company to the same payee and similarly endorsed. The receptionist's evidence in regard to that cheque is that she took it to the bank and attempted to bank it in her own bank account in the expectation of receiving a commission. She could not deposit the cheque because her account was closed. That evidence directly conflicts with the evidence of the bank officers that Betty was trying to deposit the check to Keake Enterprises account. The cheque is not available in evidence.

14. Coupled with any other evidence that connected the accused to the four cheques in the indictment the similar fact evidence could be powerfully persuasive. But on its own, with no such other evidence, I think I should apply to it the same test as is applied to circumstantial evidence. That is, is the guilt of the accused the only logical inference to be drawn from the evidence? I do not think that it is. There are many other circumstances which might apply, and although not providing an innocent explanation for the fifth cheque, would not involve the accused in transacting the four cheques in the indictment.

15. As the learned authors of Criminal Law and Practice of Papua and New Guinea, Chalmers,Weisbrot, Injia, & Andrew, 3rd edition, observe at page 641:

"Evidence of facts similar to a fact in issue is not, in general, admissible to prove either the occurrence of a fact in issue or the identity of its author. Such evidence must be evidence of the acts of the accused; evidence of acts of a person other than the accused do not fall within the exclusion. "

16. The other aspect of the evidence which requires consideration is the fact that the receptionist, in involving herself in the attempted conversion of the fifth cheque, might have been a co-accused of the accused if he were charged in respect of that offence. In those circumstances I think that I ought to look upon her evidence critically, because the person against whom the State has not proceeded, may be under the impression that situation only applies so long as their evidence suits the State case. The witness is technically not a co-accused, but in other circumstances could have been. Coupled with the conflict between Betty's evidence and the bank officers’ evidence, the circumstances lead me to conclude that I could not rely solely on Betty's evidence.

17. Having considered all of these issues I am not satisfied that the State has produced any evidence which establishes that it was the accused who obtained the cheques, endorsed them and gave them to Peter Oh. Nor that he was the person who altered the receipts. The central elements of the offence have not been proven. There is no evidence or only a scintilla of evidence that the accused acted dishonestly and applied to the use of another, the cheques mentioned in the indictment.

18. I do not consider that there is sufficient evidence to call upon the accused to present his defence.

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

National Court of Papua New Guinea

State v Vevo [2007] PGNC 1; CR 399 of 2000 (6 March 2007)