State v Chilong [2008] PGNC 218; N3578 (23 October 2008)

N3578

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1836 OF 2005

THE STATE

V

BRUNO TANFA CHILONG

Vanimo: Sevua, J
2008: 15, 16, 17 & 23 October

CRIMINAL LAW – Misappropriation – Plea of not guilty - Accused employed as Lands Officer with Lands Office, Vanimo – Accused facilitated preparation of documents including Deeds of Releases for payment for three portions of customary land at Wutung – Payment made to his brother – Accused claimed his father is the customary land owner therefore entitled to payment.

CRIMINAL LAW – Misappropriation - Payment made to accused’s brother on basis that land in question belonged to their father - Honest claim of right – Whether issue of honest claim of right arises - Whether the customary land the subject of the payment relating to this charge is owned by accused’s father and his clan – Whether accused misappropriated the money.

Criminal Code Act, ss 383A (1) and (2) (b) and (d), 23.

Held.

1. The three portions of land the subject of payment by BSP cheque No. 102713 are owned by Stanis Tanfa Chilong the father of the accused and his Hlongchin clan by customary law therefore payment made to the accused was based on that ownership by custom.
   
2. The defence of honest claim of right is available to the accused and his father in respect of the customary ownership of the portions of land in question therefore the accused claiming under his father had the right to the money as payment of the portions of land, the subject of the money in question.
   
3. The accused is not guilty of misappropriating the sum of K45, 000.00 and is therefore acquitted of the charge.
   

Cases cited in the judgment.

Rokpa v. The State [1994] PNGLR 535
Lawi v. The State [1987] PNGLR 183
R v. Magalu [1974] PNGLR 188

Counsel

J. Wala, for State
M. Mwawesi, for Accused

23 October, 2008

1. SEVUA, J: The accused is charged with the misappropriation of the sum of K45, 000.00 contrary to s. 383A (1) and (2) (b) and (d) of the Criminal Code Act.

2. The allegations against the accused are these. The accused was employed as a Lands Officer in the Sandaun Provincial Lands Office in Vanimo. In 2003, he abused his position by manipulating certain land documents in favour of his brother Robby Tanfa and his father Chilong Tanfa so that payment of certain portions of land between Wutung village and the Border Post near Wutung were paid to his brother Robby Tanfa, which land, the State alleges belonged to the Hlongthu clan headed by Paramount Chief Alois Waho.

3. The portions of land are Portion 103 called Paleh Hlungmihyang valued at K10, 000.00; Portion 104 called Hlongchung valued at K15, 000.00, and Portion 105 called Paleh Hlungmihyang Whaelakhu valued at K20, 000.00.

4. The State further alleges that on 16th December 2003 the accused raised a claim for payment of the K45, 000.00, but did not have the chiefs of Hlongthu clan execute the Deeds of Release. These were executed by the accused’s brother Robby Tanfa and his father Chilong Tanfa.

5. On 17th December 2003, the accused with another lands Officer from Port Moresby, Rogakila together with Robby Tanfa went to BSP Vanimo where the cheque was cashed and the proceeds given to his brother Robby Tanfa without the authority of Alois Waho and other chiefs from the land owning clan.

6. It is also alleged that in the documents prepared by the accused, he had his brother Robby Tanfa as a representative or signatory to the Deeds of Release for the payment of the sum of K45, 000.00.

7. Therefore the State alleges that the accused misappropriated the sum of K45, 000.00, the property of the State.

8. On arraignment, the accused pleaded not guilty to the charge and therefore put the State to proof.

9. A number of documents were tendered by consent as part of the State’s case. These were admitted and marked as follows:-

1. Record of Interview Exh. "A"

2. Special Land Investigation Report Exh. "B"

3. Native Land Dealings No 6241 Exh. "C"

4. Native Land Dealing No 6240 Exh. "D"

5. Native Land Dealing No 6242 Exh. "E"

6. Schedule of Owners, Status and Rights Exh. "F"

7. Deed of Release Portion 103 Exh. "G"

8. Deed of Release Portion 104 Exh. "H"

9. Deed of Release Portion 105 Exh. "I"

10. Certificate by Officer Executing Document Exh. "J"

11. General Expenses Form Exh. "K"

12. Requisition for Expenditure Exh. "K1"

13. Original BSP Cheque #102713 Exh. "L"

14. Statement of Audry Kilalang Exh. "M"

15. Statement of Dennis Lamus Exh. "N"

16. Statement of Bernard Poya Exh. "O"

17. Certificate of Alienability Exh. "P"

18. Certificate of Alienability Exh. "P1"

19. Certificate of Alienability Exh. "P2"

10. Prosecution witnesses who gave evidence on oath were Alois Waho, Martin Naugere, Patrick Ante, Thomas Nara and Steven Yigrin. Apart from the last witness who was the former District Administrator for Vanimo Green, the first four witnesses are from Wutung village.

11. The State called these four Wutung villagers to give evidence of customary ownership of land; how land was inherited, who were the persons who should have received the payment the subject of this charge against the accused, and whether the accused’s father is a landowner and therefore entitled to the payment.

12. Without canvassing the evidence of each of the four witnesses separately, I consider it sufficient to summarise the four witness’ testimony because their evidence is basically the same in nature.

13. The first witness, Alois Waho is said to be the Paramount Chief of Hlongthu Clan of Wutung village. Under his chieftainship are three sub-clans Ningmie, Tingwua and Yingmie. It should be said here that the words Sub-clans and Clans were used interchangeably in the testimony of these four witnesses therefore the Court is not sure as to whether these three entities were actually clans or sub-clans.

14. It should also be stated that the Hlongthu Clan was also referred to as Hlongthu Tribe. And again the Court is not sure whether it is a Tribe or a Clan. The prosecution has not clarified these two aspects of the witnesses’ evidence. I consider that this is relevant because in order to understand the inheritance of customary land, we need to understand whether land was being inherited from a Tribe or a Clan and whether there is more than one owner of a particular parcel of land.

15. Another matter left unresolved by the State in so far as the evidence of Alois Waho is concerned is that the witness said his name is Alois Waho. However in the documents admitted into evidence and marked respectively as Exhibits "C", "D" and "E" which are identified in the evidence as Native Land Dealings Numbered 6241, 6240 and 6242; and which the State sought to rely on, the name Alois Waho is not in those documents, but there is a person named Alois Whahong. Again it is not clear if Alois Waho and Alois Whahong are the one and same person as the first witness.

16. Another issue is whether there was only one ancestor or more than one ancestor of these four witnesses who migrated to Waramo then to Wutung. Once again the words ancestor and ancestors were used interchangeably.

17. The State has not clarified these issues therefore the Court is left guessing as to the true and correct status of Hlongthu, whether it is a Tribe or a Clan and whether the tree customary groups are clans or sub-clans together with whether Alois Waho is the same person as Alois Wahong.

18. The lack of clarification or explanation is the first matter that needs to be raised at this juncture. I need not restate the law that this is a criminal trial and matters of fact which the prosecution seeks to rely on must be proven on the criminal standard of proof, which is, proof beyond reasonable doubt. There is no place for guess work, assumption and speculation in a criminal trial. That is trite law.

19. In essence the evidence of the first four witnesses, that is, Alois Waho, Martin Naugere, Patrick Ante and Thomas Nara are this. Their ancestors descended from the bush or inland area and settled at Waramo village, which is the second village West of Vanimo Township if one is travelling to the border of Papua New Guinea and Indonesia. After settling at Waramo village the ancestor or ancestors migrated to Wutung village. No time frame was given except that the witnesses referred to them as the 10th or 12th generations of Wutung.

20. When the ancestor migrated to Wutung village, he married a woman from Hlongchin Clan of Wutung. Hlongchin Clan belongs to the accused’s father, Stanis Tanfa Chilong although the witnesses said that clan is now extinct, which evidence is directly in contradiction to the evidence of the accused and his father Stanis Tanfa Chilong. From that marriage, there were three sons who established the three clans or sub-clans Ningmie, Tingwua and Yingmie. There is no evidence of the names of those three sons and there is no evidence that the three clans or sub-clans derived their names from those three sons.

21. The heads of the three clans or sub-clans are Alois Waho, Chief of Ningmie; Alois Blebong, Chief of Tingwua and Stanis Tanfa Chilong Chief of Yingmie.

22. Also from the marriage of that migrant from Waramo to Wutung, land ownership rights were given to the three clans or sub-clans. That is, the Wutung woman gave away ownership rights of Wutung land to her children, which in turn, Alois Waho and the other witnesses claim ownership to those parcels of land, Portions 103, 104 and 105 the subject of the payment which is the cause of this criminal prosecution.

23. But let me pause here for a moment and say that in my opinion, this is purely an assertion by the witnesses because there is no credible evidence before this Court that the unnamed woman from Wutung who married this immigrant from Waramo had the right or authority by custom to give away land ownership to her husband or their children. There is no proof beyond reasonable doubt that she had power by custom to give away customary ownership of land based on a patrilineal society. No evidence has been adduced that the Wutung people have a matrilineal society where their off springs can inherit land from their mothers.

24. I consider this to be very important and relevant to this case because apart from the Court determining the legal issue, which is, whether the accused misappropriated the sum of K45, 000.00; the Court must determine whether the accused’s father is the owner of the land in question therefore entitled to the payment which the accused and other officers processed in his brother’s name.

25. It is also the evidence of these witnesses that the three portions of land that were sold to the Government for road construction from the bottom of the hill at the end of Wutung village up to the Border Post belonged to Hlongthu clan therefore the accused should have consulted Alois Waho and Alois Blebong as well apart from his father Stanis Tanfa. The four witnesses said the money belonged to the Hlongthu clan as it owned those three portions of land the subject of the payment of the sum of K45, 000.00.

26. The fifth witness was Steven Yigrin who was the former District Administrator of Vanimo Green which Wutung came under. His evidence is that a Christopher Kapi from the Department of Provincial and Local Level Government Affairs in Port Moresby had contacted him by telephone on 12th December 2003 and advised him that one Iruna Rogakila from the Lands HQ in Port Moresby was travelling to Vanimo from Port Moresby to effect payment of three portions of land at Wutung Border Post. From other prosecution’s evidence, Iruna Rogakila was a Senior Officer of the Department of Lands at its Headquarter in Port Moresby.

27. The witness met Iruna Rogakila at Vanimo airport on 15th December and they agreed to meet at the witness’ office the next day, 16th December. On that day, Iruna Rogakila with the accused, Bruno Tanfa and his brother, Robby Tanfa and their father Stanis Tanfa met the witness in his office. In the office, the witness asked for the documents relating to the three portions of land. Iruna Rogakila handed three Deeds of Releases to the witness who subsequently raised a Requisition for the processing of the cheque for K45, 000.00.

28. After completing the requisition, Steven Yigrin took it to the Administrator to sign as the latter was the Financial Delegate. However the Administrator was busy that time so the witness left the requisition with the Administrator’s Secretary. The next day the witness was informed that Treasury had raised questions about the requisition because it was submitted without supporting documents. The witness was then requested to provide supporting documents to be attached to the requisition. Iruna Rogakila then brought the three Deeds of Releases to the witness where he signed and attached them to the requisition so that the cheque could be processed.

29. From this witness’ testimony and from Exhibits "G", "H" and "I" which are the copies of the three Deeds of Releases, there is no dispute that the total sum of K45, 000.00 the subject of this charge comprised of K10, 000.00 for Portion 103 Paleh Hulungmihyang land; K15, 000.00 for Portion 104 Hlongchung land, and K20, 000.00 for Portion 105 Paleh Hlungmihyang Whaelakhu land.

30. However it is noted that the documents tendered by the State, especially the three Native Land Dealings have different names and descriptions which are not exactly the same as what the State has maintained in its allegations against the accused. In Exhibit "C" Portion 103, the land is described as the Paleh Hlungmihyang –Whealakhu whereas in the opening address of the State’s case, Portion 103 was stated as the Paleh Hulungmihyang land. In Exhibit "E", the land is described as Paleh Hlungmihyang Hlongchung whereas in its opening address the State described it as the Paleh Hlungmihyang Whaelakhu land.

31. As I have observed earlier on, the State has failed to rectify these land descriptions therefore causing confusion as to the correct land that were being excised from the customary land belonging to the landowners and paid for by the Government.

32. I do not accept that it is the responsibility of the Court to assume the correct name and description of each of the land which the State alleged that the accused misappropriated the payment for. I maintain that it is the duty of the State to prove beyond reasonable doubt disputed facts relating to this case so that the Court is satisfied beyond reasonable doubt that the land in question which the State alleged that the accused had misappropriated the payment for are correct in name and description.

33. If there are discrepancies in these issues, it is the State’s responsibility to clarify such issues, not to leave it to the Court to assume anything. When this state of affairs occurs, it only creates doubts which do not assist the case for the prosecution against the accused because a criminal conviction can only be founded on evidence that is free from any doubt. Otherwise, it cannot be said that the State has proved its case beyond reasonable doubt. The State has this duty from the beginning of its case to the end, and must discharge that duty on the criminal standard of proof.

34. In summary, the four witnesses who were called to give evidence as to customary ownership of land had completely derailed the ownership of land by the Hlongchin Clan. This is directly contrary to the documented Special Investigation Land Report, Exhibit "B", which the State had tendered as part of its documentary evidence. This document does not support the oral testimony of the four prosecution witnesses because it clearly stated that the Hlongchin Clan which Stanis Tanfa Chilong is its chief is the original land owning clan of Wutung land and the portions of land which the payment of K45, 000.00 relates to.

35. While the State has made very serious allegations against the accused for "manipulating" the various documents, the State has not proven this allegation beyond reasonable doubt. In my view, such allegations border on defamation which becomes very unfair to the accused because he cannot sue since these issues arose in court proceedings and he would be barred from suing on it under the Defamation Act.

36. In any event, it is the undisputed evidence of the State that the process of payment commenced from a direction from the Department of Provincial and Local Level Government Affairs through a Christopher Kapi who had advised Steven Yigrin, the fifth prosecution witness that Iruna Rogakila from the Department of Lands Headquarters was travelling to Vanimo to settle payment for customary land at Wutung Border Post. There is no evidence at all that this process was commenced by the accused or that he manipulated it.

37. Furthermore, it is the undisputed evidence of the State that Iruna Rogakila an Officer of the Department of Lands in Port Moresby came to Vanimo especially to facilitate the payment of the land and he was the person who handed the Deeds of Releases to Steven Yigrin who then attached them to the requisition to enable the processing of the cheque in favour of the accused’s brother.

38. It is also the undisputed evidence of the State that the Special Land Investigation Report, Exhibit "B" has details of the customary land tenure which clearly states that the Hlongchin Tribe is the original land owning tribe of the present day Wutung. Some parts of that document confirm the evidence of the four witnesses from Wutung village as to the migration of the ancestor of the Hlongthu Clan from Waramo village and his marriage to a woman from the Hlongchin Clan thereby creating user rights to the land at Wutung whereas the ownership rights remained with the Hlongchin Clan. This is confirmed by the oral testimony of the accused and his father Stanis Tanfa in the defence case.

I will refer to this document again when I discuss the evidence of the accused and his witness in the defence case.

39. But let me highlight the fact that even though this report was prepared by the accused, there is no evidence at all that he falsified this report or manipulated it for his own purpose as suggested by the State in cross examination. If it was a report that was fraudulently prepared or that the accused conspired with certain persons to include matters that are false or not factual there is no evidence of that.

40. Quite apart from the documentary evidence tendered by the State, the evidence of the first four State witnesses only relate to the customary ownership of land at Wutung. Their evidence does not directly relate to the issue of misappropriation and the intention of the accused.

41. Even the evidence of the fifth State witness, Steven Yigrin, does not directly point to the accused’s motive or intention to misappropriate the sum of
K45, 000.00.

42. Another observation I make in this case, especially in respect of the State’s case, is that if the accused had a motive and the evil intention to misappropriate the money, evidence from Iruna Rogakila would have assisted the State’s case very much. It is my view that if the State had wanted to show that it was the accused that had manipulated the documents so that his brother or father would benefit, evidence should have been adduced from Iruna Rogakila to that effect.

43. The State could have even called Christopher Kapi as a witness to say, if it is a fact, that it was the accused who arranged the whole payment process by asking Christopher Kapi to direct Steven Yigrin to assist Iruna Rogakila, and also that it was the accused who had arranged for Iruna Rogakila to travel to Vanimo to effect the payment for the land at Wutung.

44. In my view, evidence from these two Port Moresby based Officers of those two Departments would have lend credence and support to the State’s case in so far as the issue of dishonest intention of the accused is concerned so that the Court would be satisfied that it was the accused who had planned all these things. That he had arranged for a direction to be issued by Christopher Kapi to Steve Yigrin and that he had arranged with the Department of Lands in Port Moresby for Iruna Rogakila to travel to Vanimo to settle the payment for the land at Wutung.

45. These are matters that go to the issue of dishonest intention which is a question of fact to be determined by the trial Judge. I will revert to this issue when I discuss the submissions of both counsels.

46. The defence case consisted of the sworn testimony of the accused and his father Stanis Tanfa Chilong. The accused also tendered a copy of a Memo from the previous Lands Manager in Vanimo, Patrick Wisio who has since deceased. It is marked Exhibit "Q".

47. The evidence of the accused is this. He comes from Wutung village and he resides at the end of the village near the PNG Border peg. His father is Stanis Tanfa Chilong who also resides there. At the material time, he was employed as a Lands Officer with the Sandaun Provincial Lands Office in Vanimo.

48. The accused’s evidence of customary land holdings came from his knowledge passed down from his father. His evidence in so far as it relates to the migration of an ancestor from Waramo village is the same as the evidence of the first four State witnesses.

49. That is, the ancestor who migrated from Waramo village married a woman from Hlongchin Clan of Wutung. She bore three sons to that man and those three sons raised the three sub-clans of Hlongthu Clan – Ningmie, Tingwua and Yingmie. His father Stanis Tanfa is the Chief of Yingmie and is also the Chief of Hlongchin Clan. Prior to the arrival of the man from Waramo, the Hlongchin Clan existed at Wutung and it was the original traditional land -owning clan of Wutung village land.

50. It is the accused’s evidence that apart from Alois Waho who was given a piece of land which is located in the mountains behind the Border Post, the other sub-clans were not given any land. They were given rights to use the land at Wutung located between the Chalong River at the Eastern entrance to Wutung village to the Border Post. His knowledge of land rights or land holdings is that Hlongthu Clan was given user right to use the land while the ownership was vested in the Hlongchin Clan. That evidence is consistent with the evidence of his father.

51. The accused also testified that his father’s mother Tung Shokeng and her brother Chulei Shokeng were the last surviving elders of Hlongchin Clan. The accused’s father’s uncle, Chulei Shokeng was not married so before he died, he transferred the authority and ownership of Hlongchin Clan land to the accused’s father sometime in the eighties when he, (accused) was attending school and he witnessed that transfer of the power and ownership of the Hlongchin Clan land by his grandfather Chulei Shokeng. Therefore the land rights and ownership of Hlongchin clan land were transferred to the accused’s father through his uncle from Hlongchin clan not from any elder from Yingmie sub-clan.

52. The Hlongchin clan land at Wutung starts from the West bank of the Chalong River to Tami River inside the Indonesian side of the international border where his (accused’s) father also has a dwelling house there and resides there too. The accused did not think that Alois Waho is the Paramount Chief of Wutung. This is an interesting issue which I will cover when I discuss the submissions.

53. The accused recalls December 2003 when payment was to be made for certain parcels of land at Wutung village which extends right up to the Border Post. He knew Iruna Rogakila who was a Lands Department staff and met him in Vanimo. Iruna Rogakila came to Vanimo to execute payment for land from the Border Post to the boom gate at the bottom of the hill and down to the village and the monument at the beach front. Rogakila told the accused that he (Rogakila) had come to arrange payment for land and so they went to see the Administrator where Rogakila briefed the Administrator.

54. It is the accused’s undisputed evidence that payment for the land was authorized by Iruna Rogakila who was the Executive Officer for that project. He had done the paper work and presented them to the District Administrator. The accused was present when the cheque was paid and he accompanied his brother Robby Tanfa and Iruna Rogakila to the bank where the cheque was cashed and the proceeds taken by his brother.

55. The accused’s father was the person who excluded the other clans from receiving any money from this payment because he is the owner of the land and as far as the accused was concerned he considered that the payment to his brother was rightfully paid because the land belonged to the Hlongchin clan, which land ownership right was confirmed in the Special Investigation Report, Exhibit "B".

56. In relation to that report, the accused said he was instructed to conduct the investigation by the then Lands Manager in Vanimo, Patrick Wisio in 1997 as the previous report in 1996 was rejected by the Lands Manager. The directive to the accused to carry out the Special Investigation came from the Provincial Lands Manager, Patrick Wisio.

57. The accused tendered a Minute dated 1st October 1997 to him from Mr. Wisio. It is Exhibit "Q". In that Minute, the accused was advised by Mr. Wisio that he (Wisio) and the District administrator had agreed to task the accused do conduct the investigation as it had been pending for too long. Thus, if there is any suggestion that the investigation by the accused was done with selfish motive there is no evidence whatsoever of that and besides, this documentary evidence clearly shows that the accused did not initiate the investigation.

It is necessary to refer to parts of the Special Investigation Report, Exhibit "B" because it supports the oral evidence of the accused and his father and therefore the defence contention, in particular, as regards land ownership and user rights or usufruct.

58. Under paragraph 3.2 Customary Land Tenure, the reports says, "The landownership is acquired through the Chieftainship system, originally the Hlongchin Tribe are the land owners of present day Wutung land". The report went on to identify the ancestor who migrated from Waramo village as FHER-OLIA who married the daughter of Hlongchin Chieftain. That relationship established the present land use system of the Wutung people. That also "created the descendants to have rights to use the land for gardening, hunting, fishing and to built (sic) houses over the land".

59. At the bottom of page 3 of the report, it states, "The sole ownership interest especially remained with the Hlongchin tribe until today and these (sic) had extended down to the three Hlongthuar clans of Wutung being the Niyiwe, Tingwua and the Nyiming clans." Then at the top of page 4 the reports says, "The landownership matter still lays (sic) with the direct descendants of the Hlongching tribe being identified as now headed by Chief Chilong and his clansmen."

60. Further down on page 4 under 3.3 Genealogy Survey, the first paragraph reads, "The genealogical records supported by the oral tradition reveal that the Hlongching tribe are the original inhabitants of Wutung with the present day descendants at twelfth generation." Then at paragraph 5 the reports states, "The genealogy summary reveals that the first colonizers of Wutung are the Hlongchings, then later the Hlongtua then finally the Talenge."

61. The accused’s evidence is obviously contrary to the evidence of Alois Waho, Martin Naugere, Patrick Ante and Thomas Nara. I should say at this juncture that these witnesses are descendants of the man who migrated from Waramo village and not from a direct lineage of a male descendant of the Hlongchin clan.

62. The second witness for the accused is his father, Stanis Tanfa Chilong. He is from the Hlongthu clan but Chief of Hlongchin clan. His evidence of the migration of their ancestor from Waramo village is the same as the evidence of the first four State witnesses and the accused therefore it is not necessary to canvass that part of the evidence. I think I can accept as a fact that a male migrant from Waramo village went to Wutung; married a woman from the Hlongchin clan of Wutung, and settled there. From his marriage, three sons emerged and they established the three sub clans of Hlongthu.

63. However, what the State witnesses did not say, and did not really give any detail evidence of is the status of Stanis Tanfa Chilong in relation to the Hlongchin clan because all of them had derailed the existence of the Hlongchin clan and even the status of Stanis Tanfa Chilong. The only plausible explanation to that is that they do not really know how Stanis Tanfa Chilong became chief of Hlongchin clan.

64. The undisputed evidence of Stanis Tanfa Chilong is that his father Chilong married the last woman descendant of the Hlongchin clan called Tung. She was the witnesses’ mother. Tung had a brother called Chulei who was the last surviving male descendant of the Hlongchin clan. Chulei had no siblings so prior to his death, he transferred the right of ownership of Hlongchin clan land to his nephew, Stanis Tanfa Chilong. The Hlongchin clan land starts at Chalong River and extends all the way to Tami River which is presently on the Indonesian side of the border.

65. From the evidence I find that the three portions of land which is the subject of the payment of the sum of K45,000.00 to Robby Tanfa were and are owned by the accused’s father, Stanis Tanfa Chilong and his Hlongchin clan of Wutung village, therefore the payment to the accused’s brother was made and paid in accordance with the ownership of those land by custom.

66. The descendants of the three sub-clans of Hlongthu clan were given the right to use the land only. They did not own the land. As Chief of the Hlongchin clan, Stanis Tanfa Chilong was bestowed ownership right by his uncle Chulei, the last surviving male son of Hlongchin clan.

67. That much is clear, and in my view, that accords with the customs of many people through out Papua New Guinea.

68. I now turn to the submissions of both counsels. Mr. Mwawesi made submissions first followed by Mr. Wala. I consider that there are two principal issues to be determined in this trial and I will discuss these after the submissions by both counsels have been summarized.

69. Mr. Mwawesi first submitted that in order to secure a conviction, the State must prove three essential elements. That the accused was dishonest; that he applied the property to the use of another, and that the State must prove that the property dishonestly applied belonged to the State.

70. Secondly, it was submitted that in order for the Court to determine the issue whether the accused dishonestly applied the money or acted dishonestly, the Court must determine ownership of land the subject of the payment of the K45, 000.00.

71. Mr. Mwawesi then referred to the evidence of the first State witness, Alois Waho, which I do not intend to refer to because I have already discussed that in the State’s case. But counsel submitted that what the witness failed to say is whether rights if any, given by the original owners of land include proprietary rights. I consider that to be a relevant issue as I will come to later.

72. It is the defence submission that the customary laws of PNG is that whether it is a matrilineal or patrilineal society, the law is that the proprietary rights in land is never given to an outsider. An outsider can be given user rights; however the proprietary rights or ownership remains the exclusive property of the landowners.

73. I think Mr. Mwawesi was referring to Alois Waho’s evidence when counsel submitted that when asked by the defence counsel, the witness said that the land from Chalong River to Tami River belonged to the Hlongchin clan. That was followed by counsel’s submission that it is the defence contention that the surviving member of the Hlongchin clan is Stanis Tanfa Chilong, the father of the accused.

74. Mr. Mwawesi then referred to the evidence of the second State witness, Martin Naugere and submitted that this witness confirmed in cross examination why Stanis Tanfa resides on the other side of the border near Tami River. The witness said Stanis Tanfa had land there and also had dealings with Indonesia. He also submitted that upon further questioning of that witness, the witness said Stanis Tanfa has land on the other side of the border.

75. The next defence contention is that there is no doubt in the evidence of the accused and of his father that the accused’s father’s mother came from Hlongchin clan. She had a brother who was single and had no issue therefore he was the last male member of the Hlongchin clan surviving at that time. From the evidence of Stanis Tanfa, prior to his uncle’s death, his uncle signed a document vesting all rights to his land extending from Chalong River at Wutung to Tami River on the Indonesian side of the border to Stanis Tanfa.

76. Mr. Mwawesi also submitted that both defence witnesses were not shaken by the vigorous cross examination by the prosecution. Although he submitted that Stanis Tanfa’s mother, Tung was a female therefore by the law of inheritance, she would not inherit land from her brother, her brother was the last male survivor of Hlongchin clan who had bequeathed all the ownership interest of the land from Chalong River to Tami River to Stanis Tanfa.

77. It was submitted that the State witnesses played dumb on the link between Stanis Tanfa and Hlongchin clan when they said that clan no longer exist, but Stanis Tanfa’s mother’s brother was the last survivor of that clan. What the State witnesses forgot was that Stanis Tanfa’s uncle, Chulei, had exclusive rights to the clan land and he transferred such rights to his sister’s son, his nephew, Stanis Tanfa.

78. Counsel submitted that if the Court finds that the proprietary rights in land were not given away to strangers, and it finds as a fact that Stanis Tanfa Chilong is the man who inherited ownership from his uncle then it is the defence submission that when the payment of K45, 000.00 was made to Robby Tanfa, the accused did not act dishonestly in applying the money to Robby Tanfa.

79. As to the property in the money, counsel submitted that our criminal law does not say when property passes from one party to another.

80. The subject of the transaction between the Government and Wutung villagers was the sale of Portions 103, 104 and 105 for road construction and alignments from the boom gate to the Border Post. The Government has already built the road and all that was to be done was the payment of the K45, 000.00 which was the consideration or price of the land. It is the defence contention that because the money had already been allocated by the State to the project and left in the care of the Treasury of Sandaun Provincial Government and paid to Robby Tanfa, the property in the money had passed from the State to the land owners therefore the State no longer had an interest in the money after the cheque was cashed.

81. Therefore it was submitted that the State’s contention that the K45, 000.00 is the property of the State is at variance with the evidence. The State no longer had interest over the money.

82. That submission runs contrary to law and I do not think I can accept it because the law has already been settled by the Supreme Court in Rokpa v. The State [1994] PNGLR 535. The Court in that case held inter alia that:

"Where monies are granted for a particular public purpose, the grantor has a legal and proprietary interest in them until theyare expended on the purpose for which they were granted: Lawi v. The State followed."

83. It was further submitted that the State has not established that the accused had acted dishonestly and because he had not acted dishonestly, he cannot be guilty of misappropriation. On that basis, Mr. Mwawesi urged the Court to return a verdict of not guilty and acquit the accused, Bruno Tanfa.

84. Mr. Wala for the State firstly submitted that it is not disputed that the accused assisted in the payment of the K45, 000.00 to Robby Tanfa. It was also not in dispute that the money was for payment of land described as Portions 103, 104 and 105.

85. Secondly it was submitted that the defence of honest claim of right under s. 23 of the Code is reversed by the element of dishonesty in s. 383A (1). It is submitted that there was clear dishonesty in the investigation when the accused added his brother Robby Tanfa and Hlongchin clan in the documents, which had already been prepared.

86. Mr. Wala referred to my remarks made in the course of this trial that this is not a Land Court, but a criminal Court to determine the charge and the guilt or innocence of the accused.

87. He submitted that what happened a long time ago is hearsay upon hearsay. But I consider that the evidence of land ownership is passed down from father to son and so on. In any event it was the State who brought in four witnesses to give evidence of customary ownership of land the subject of this payment. Therefore it is quite absurd for the State to turn around now and condemn the evidence of the defence in relation to customary ownership or rights to land when its four witnesses’ evidence could be treated in the same vein – i.e. hearsay upon hearsay.

88. The State maintains that the ancestors of all the witnesses came from the inland and migrated to Waramo then to Wutung. There is no evidence that they were the first people to settle at Wutung. In fact there is undisputed evidence that when the ancestor migrated to Wutung, he married a woman from Hlongchin clan therefore the descendants of that ancestor were not the traditional owner of land in Wutung.

89. Mr. Wala continued and submitted that the accused manipulated the documents for the payment however that is contrary to the evidence of the State’s fifth witness, Steven Yigrin who said that Iruna Rogakila was the person who handled the documents and brought them to the witness’ office.

90. Counsel for the State submitted that there is no evidence to prove that the accused’s father was given land by his uncle. But the accused’s father did say that the document is in Port Moresby.

91. Finally the State submitted that the accused misappropriated the money which belonged to the Hlongthu clan therefore he should be found guilty of this crime.

92. The Court has considered all the evidence and both parties’ submissions. It is my opinion that the legal issue to be determined by the court in this trial is whether the accused misappropriated the sum of K45, 000.00 being payment for land at Wutung. Before that issue is determined, I consider that the Court must determine who owns the land the subject of the payment therefore is entitled to the payment of K45, 000.00.

93. Contrary to Mr. Wala’s submission that the defence evidence of customary ownership is hearsay upon hearsay, the Court should say the same thing to the first four State witnesses. As I intimated to Mr. Wala during his submissions, the Land Courts normally accept evidence of history passed from the father down to the son. In the present case, the evidence from the accused is basically what he was told by his father. That is the only means of knowledge on customary land inheritance because evidence of such customary land ownership and land rights are not documented like text books and materials on introduced law. Instead it is passed down from generation to generation.

94. From the evidence of the first four state witnesses and the accused and his father, I find as a fact that the ancestor of these witnesses migrated from Waramo village to Wutung. Initially he was from the inland area. When the ancestor migrated to Wutung, the Hlongchin clan occupied Wutung that is why the ancestor married a woman from the Hlongchin clan and settled there. I find as a fact that the descendants of that ancestor were not the original owners of land at Wutung. The clan of Hlongthu and its three sub-clans Ningmie, Tinwua and Yingmie were not original land owners of land in Wutung.

95. From all these witnesses’ evidence, it is quite strange in my view that immigrants from outside of Wutung could be given the position and status of chiefs and ownership of land when they did not originally come from Wutung.

96. The most significant aspect of all these evidence is that Alois Waho, Martin Naugere, Patrick Ante and Thomas Nara including Stanis Tanfa who were all descendants of this ancestor from Waramo had inherited land rights from this woman from Hlongchin clan. But the difference with Stanis Tanfa is that he was granted right of ownership of land at Wutung by his uncle Chulei who was the last male survivor of the Hlongchin clan.

97. It is my opinion that the evidence of the accused and his father, Stanis Tanfa is consistent with the customs of many traditional societies in PNG who inherit land from their fathers or other male descendants. Apart from Bougainville, East New Britain and New Ireland where they have matrilineal societies therefore the children inherit land from their mothers, the rest of Papua New Guinea is the opposite. I do not, and cannot accept that the ancestor from Waramo alienated land ownership of Wutung land to the sub-clans which are now headed by Alois Waho and Alois Blebong. There is no evidence that that woman had authority by custom to do that and there is no evidence that by custom, a woman could transfer ownership rights to an outsider in preference over a surviving male of the same clan.

98. From the evidence, I find as a fact that Stanis Tanfa Chilong inherited land ownership rights from his uncle Chulei of Hlongchin clan therefore land ownership having been alienated from the last surviving male descendant of Hlongchin clan to him gave him a superior right over all the other descendants of the migrant from Waramo including Alois Waho and Alois Blebong. Those other descendants excluding Stanis Tanfa Chilong were given user rights or usufruct only. They were not given ownership right.

99. That finding is reinforced by the fact that in Papua New Guinea, land ownership right is not given away to strangers or immigrants from outside the clan or village. Like the example I used during the evidence of Thomas Nara I think, where I said to him, I am from Manus and if I come to Wutung, can I get ownership of land there as a stranger. He emphatically said no, and I consider that that is the true position in many societies in PNG. Ownership of land is never given away to strangers or people from outside the clan or village.

100. I have some doubts as to the veracity of the evidence of Alois Waho and Martin Naugere and in fact the other two witnesses as well. I do not see how the descendant of an immigrant to Wutung can inherit ownership of land and chieftainship. I may be naïve, but I have not heard of any other traditional societies apart from the Trobriand Islands that they have a Paramount Chief. Simply these are not given away to descendants of immigrants. In the present case I doubt if Alois Waho is the Paramount Chief of Wutung. I can’t imagine how the descendant of an immigrant could inherit ownership and chieftainship from a female member of a clan. That is not the custom of many tribes or clans in PNG therefore it would defy logic, common sense and customary laws.

101. I find that where the evidence of Alois Waho, Martin Naugere, Patrick Ante and Thomas Nara conflict with that of the accused and his father, I prefer the evidence of the accused and his father Stanis Tanfa Chilong. They were better witnesses and gave their evidence competently whereas the four State witnesses’ demeanour and credibility did not match those of the defence witnesses. The four State witnesses did not know, and could not remember certain important matters put to them in cross examination.

102. I observe that they were prejudiced against the accused and his father because of the payment of K45, 000.00 which created an impression that they were out there to make sure that they derail the chieftainship of Stanis Tanfa Chilong. He was a much better witness than his fellow villagers who gave evidence for the State. I have no problem in accepting his evidence.

103. Therefore as far as the defence evidence is concerned, I find as facts that Stanis Tanfa Chilong is the Chief of Yingmie sub-clan of Hlongthu clan; he is the chief of Hlongchin clan; he was given ownership rights as opposed to usufruct over land at Wutung owned by Hlongchin clan by his uncle Chulei; that Hlongchin clan owns land from Chalong River to Tami River; that the portions of land which the payment of K45, 000.00 was for and which is the subject of this charge are owned by Hlongchin clan; that Stanis Tanfa Chilong’s ownership rights over these land are superior than the user rights of the other descendants of the immigrant from Waramo who came from the woman who married that man. I find those matters are consistent with customary law.

104. Because I have made findings of facts in favour of Hlongchin clan and Stanis Tanfa Chilong and because I have found that Stanis Tanfa Chilong is the Chief on Hlongchin clan, the traditional and original owners of land at Wutung, I conclude that he and his clan were entitled to the payment for land which was collected by his son, Robby Tanfa.

105. Having determined the question of customary ownership of land at Wutung, I now look at the legal issue whether the accused misappropriate the sum of K45, 000.00 the property of the State.

106. That issue involves the question of dishonesty because of the words "dishonestly applies" in s. 383A. Therefore if I find that the accused was dishonest I should find that he dishonestly applied the money to the use of another person.

107. With respect to Mr. Wala, it must be emphasized that the accused is charged with misappropriation, not with manipulating documents. Of course if I find as a fact that he did, that would go to the question of dishonesty which the Supreme Court has already settled in Lawi v. The State [1987] PNGLR 183; where the Court said:

"As the word "dishonestly" in s 383A only relates to the state of mind of the person who does the act which amounts to misappropriation, whether the accused has a particular state of mind in relation to the application of property which is dishonest is a question of fact for the trial judge to consider on all the facts of the case before him....."

108. First, I consider that the accused was not the sole Lands Officer who had handled this payment. The evidence both from the State and the accused is that Iruna Rogakila was sent to Vanimo specifically to settle the payment. He was an active participant in the processing of the cheque made payable to Robby Tanfa. He was also involved in the process of the payment so it was not as if the accused was the only person involved in this transaction.

109. Secondly, if the Administrator of Sandaun and the District Administrator of Vanimo Green, had suspected that the accused was manipulating the documents for his family’s benefits as suggested numerous times by the State, I am sure that they would have put a stop to that payment. The land in question includes land which is of international significance to the nation and Indonesia and other neighbouring countries like Australia for security reasons so that the land issue was not something that was kept secret by the accused.

110. The accused was the Lands Officer dealing with customary land in the Sandaun Administration Lands Office. He was tasked by the District Administrator and Provincial Lands Manager to compile a report because of his own peculiar knowledge of the land and the people who owned the land. He did not secretly go to his father and collect information. He did consult other village leaders and people therefore the report he compiled was an official engagement, not a private and secret act that the accused did to manipulate documents for his family’s benefit.

111. His evidence in compiling the Special Investigation Report is largely uncontested and the contents of the report clearly reveal that he widely consulted the leaders and people of Wutung, not his own family only. This issue is important as it relates to the question of dishonesty.

112. From all the documentary and oral evidence before me, I am not satisfied beyond reasonable doubt that the accused acted dishonestly in preparing the documents relative to this payment and accordingly, I find that he was not dishonest.

113. Thirdly, the cheque was not made payable to Alois Waho or Hlongthu clan so that it could be said that the accused misappropriated the money in the cheque by applying that cheque to his brother’s use instead of applying it for the purpose it was intended for. Misappropriation is essentially the application of property to a use other than the purpose the property was intended for.

114. A classic example of misappropriation is the well known case of Kindi Lawi (supra) where the appellant had obtained funds from the Government for specific public purposes however instead of applying the funds for those purposes, he deposited part of the money into an account under his and his wife’s names while the part of the money was deposited into his own account. He was the sole signatories to both accounts. The money was not used for the projects it was intended for.

115. The present case is not the same as Kindi Lawi’s case. Here the cheque was payable to Robby Tanfa and Robby Tanfa cashed the cheque witnessed by both the accused and Iruna Rogakila. Exhibit "L" which is the original cheque is endorsed at the back by all three men. It is not a case where the money was intended for a specific purpose but the accused applied it to the use of his brother. The cheque was made payable to his brother so how could he misappropriate that money?

116. Finally, I consider that the accused had a bona fide claim of right which is a defence under s. 23 (2) of the Criminal Code Act. That section states that:

"A person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by him with respect to any property in the exercise of an honest claim of right and without intention to defraud."

117. The Court in R v. Magalu [1974] PNGLR 188, at 199, said:

"A claim of right sufficient to relieve a person of criminal responsibility need only be honest and not be reasonable."

118. I consider that the evidence in this case is more than sufficient to show that the accused had an honest claim of right to the money because the payment was for land that his father and his clan owned. I have found that the accused’s father’s ownership rights over the land in question to be far superior to the rights of the other descendants of the migrant from Waramo. That was based on the evidence that the accused’s grandfather Chulei, was the last surviving male member of the Hlongchin clan which owned the land at Wutung. Hlongchin clan only gave user right or usufruct to the descendants of that migrant from Waramo village.

119. It is my considered opinion that the defence of honest claim of right is available to the accused and his father in respect of the customary ownership of the portions of land in question therefore the accused claiming under his father had the right to the money as payment of the portions of land, the subject of the money in question.

120. Because I have found that the land at Wutung were and are owned by the Hlongchin clan headed by Chief Chilong, the accused’s father; that clan’s ownership rights cannot be defeated by any claim of right by Alois Waho and members of Hlongthu clan because those members were given only user rights.

121. Therefore in my opinion, at the time that the accused and Iruna Rogakila arranged the documents for the payment of the sum of K45, 000.00, the accused had an honest claim of right over the money because his father and Hlongchin clan owned the land which that payment was intended. His claim of right was based on facts from history passed down from his father, not a belief that his father and the Hlongchin clan may be the owner of the land in question.

122. There are a number of issues that created doubts in my mind. I have alluded to those matters which basically relate to the evidence of customary ownership of land at Wutung. In a criminal trial, the accused is given the benefit of the doubt. In this case, the accused is entitled to the benefit of those doubts. The doubts mean that I cannot be satisfied beyond reasonable doubt of the guilt of the accused.

123. For these reasons, I am not satisfied beyond reasonable doubt that the State has proved its case beyond reasonable doubt. Accordingly, I must find that the accused is not guilty of misappropriating the sum of K45, 000.00 and I acquit him of the charge.

124. I order that his cash bail in the sum of K1, 000.00 be refunded to him.

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Acting Public Prosecutor: Lawyer for State
Public Solicitor: Lawyer for Accused