State v Tiki; State v Kamin [2008] PGNC 254; N3990 (23 October 2008)

N3990

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO. 147 OF 2006

THE STATE

V

ROBERT TIKI

&

CR NO. 148 OF 2006

THE STATE

V

JIM KAMIN

Kainantu: Yagi, J.
2008: 20 & 23 October

CRIMINAL LAW – misappropriation – accused persons pleaded not guilty –trial - no case submission from defence counsel at the close of states case – test is whether the evidence supports the essential elements of the offence – no evidence in relation to establishing two elements of offence – both accused acquitted – s383A Criminal Code Act

Counsel:

L. Rangan, for the State
B. Koningi, for the Accused, Robert Tiki
M. Mumure, for the Accused, Jim Kamin

23 October, 2008

1. YAGI J: The two accused, Robert Tiki and Jum Kamin, have been indicted together. Both pleaded not guilty to one count of misappropriation. The indictment presented by the State against both Accused states:
   

"ROBERT TIKI of KETA village, Muglamp in the Western Highlands Province and JIM KAMIN of KOGE village, Sinasina in the Simbu Province stand charged that they between the 20th day of October, 2004 and 1st day of December 2004 at Goroka in Papua New Guinea dishonestly applied to their own use money the sum of Ten Thousand Five Hundred and Forty-five Kina and Thirty – five toea (K10,545.35) the property of Law and Justice Sector Program."

2. Counsel for the State, Mr. Rangan, informed the Court that the indictment as presented against both accused is under s. 383A (1) (a) of the Criminal Code Act.
   
3. By consent the State tendered the following documents into evidence:-
   
   1. In respect to Accused, Robert Tiki –
      
      • Record of Interview (English version) dated 02nd November 2005 – Exhibit "A"
        
      • Statement of Investigation Officer, Detective Constable Bina Gigiba (type written English version) dated 03rd November 2005 – Exhibit "B"
        
      • Statement of Corroboration Officer Detective Constable Elizah Aron (typed written English version)- dated 03rd November 2005 – Exhibit "C"
        
   2. In respect to Accused, Jim Kamin –
      
      • Record of Interview (typed written English version) dated 21st December 2005 – Exhibit "D"
        
      • Statement of Investigation Officer, Detective Constable Bina Gigiba (English version) dated 22nd December 2005 – Exhibit "E"
        
      • Statement of Corroboration Officer Detective Constable Elizah Aron (English version) dated 22nd December 2005 – Exhibit "F"
        
   100. In respect to the State’s Case generally –
        
        • Statement of Correction Service Commissioner Richard Sikani dated 11th November 2005 (typed English version) – Exhibit "G"
          
        • Letter by Kaisa Kemawawa dated 08th October 2004 – Exhibit "H"
          
        • Letter by Commanding Officer Anis Kapil to Director Facilities Management Unit dated 21st September 2004 – Exhibit "I"
          
        • Quotation No. MHG09 by Mitre Hardware dated 01st October 2004 – Exhibit "J"
          
        • Correction Services Check List form No. 091451 – Exhibit "K"
          
        • Copy of Cheque for K35,734.93 – Exhibit "L"
          
        • Bundle of copy Mitre hardware Invoices including an hand written summary identified as RT06 in the Committal Proceedings – Exhibits "M1" and M2".
          
4. After the tendering of the documentary evidence, Mr. Rangan for the State, called 5 witnesses who each gave sworn oral testimonies. After these State witnesses were examined, the State formally closed its case.
   
5. The summary of the oral evidences given by the State witnesses are as follows:-
   

Witness No. 1: Sam Wange.

He is the Branch Manager of Steamships Hardware in Goroka. He has been employed in that capacity for the last 4 years. Previously was employed by Mitre Hardware Company. The Mitre Hardware Company was owned by Collins & Leahy Company but was sold to Steamships Hardware Company in 2005. He was aware of a cheque of K35,000 plus from Law & Justice Sector Program given to Mitre Hardware for the purchase of Taffa tanks for Bundaira Correctional Institution. He said there were 11 invoices issued by Mitre Hardware against the cheque. He referred to a hand written summary of the Invoices (Exhibit "N") and said that the cheque was held in some form of a credit account where materials were supplied on request and value of the materials deducted from the credits. There was no cash payments made or released to anyone including the two Accused during the transactions. The credit balance as at December 2004 was K1,801.01. He also recalled that the Accused, Robert tiki, did attend his office, on one occasion and used his telephone to speak with his superior to make changes or variation to the orders. He said the Mitre Hardware driver did transport the materials ordered to Bundaira CIS and he received no reports from the driver about deviation to the destination.

Witness No. 2: Yagivi Kimundi

He is currently employed as Driver with Steamships Hardware Company. He was previously employed by Mitre Hardware Company. He said he recalled having delivered on 3 occasions a number of Tanks to Bundaira CIS. He cannot recall the date as it was some time ago. He said on the first occasion he dropped off 3 large size tanks (about 2,000 gallons). On the second occasion he delivered about 4 large size tanks. On the third occasion he delivered 4 small size tanks. The first and second deliveries were made direct to Bundaira CIS premises whilst the third delivery was made to a Service Station in Kainantu due to bad road condition along the road towards Bundaira CIS, after approval and direction was given by Bundaira CIS Officers. He also said he had never diverted the deliveries to any other destination.

Witness No.3: Gibson Bani

He is the Industrial officer at Bundaira Correctional Institution. On instructions, he conducted an investigation into the K35,734.93 cheque. He initially went to Mitre Hardware in Goroka but was denied assistance by the Hardware officials because he was not recognized as the authorized officer. Subsequently he received authority from his boss and was able to obtain some information relating to the use of the cheque. His investigation found that the cheque was for the purchase of 10 x 9,000 litre Taffa tanks. However, he says there are presently 8 tanks at Bundaira CIS. He cannot say why there are less than 10 tanks at Bundaira CIS. He says 3 x 9,000 litre tanks have been installed whilst 5 tanks have not been installed because some have no fittings. He says the fittings have been purchased but he can not say whether these were purchased from Mitre Hardware or elsewhere. These included taps, piping and down pipes. He does not have any idea why the 5 tanks have no fittings. He said he did not conduct a physical audit of the materials purchased from Mitre Hardware.

Witness No. 4: Gabriel Wai

He is an Inspector in rank and the Facilities Manager responsible for such matters as security, shifts, escorts, etc. his responsibilities include looking after industrial section and maintenance of houses. He said he recalled coming across the K35,734.93 cheque which was for the purchase of the Taffa tanks. He had requested for a report pertaining to the matter from the Accused Robert Tiki but did not receive a report. When he did not receive the report he directed Warder Gibson Bani to investigate and prepare a report for him. He said there should have been 9 x 9,000 litre tanks purchased but instead there were only 4 tanks. He does not know why the change was made and says that the Accuseds did it themselves without approval by the then Commanding Officer, the late Anis Kapil. He is not aware if any cash was taken as a result of the swap in the tanks.

Witness No. 5: Alois Kuima

He is the Internal Auditor for the Department of Correctional Services (CS) and stationed at CS Head Office. His role is to audit books of the Department and verify transactions and to ascertain whether there was compliance with the requirements of the Public Finance (Management) Act. His findings and report are forwarded to the Commissioner of CS. He undertakes his tasks on routine annual audit basis or on direction when specific allegation is raised. He said he came to Bundaira specifically to investigate for this case in May 2005 on behalf of the Law & Justice Sector Program. He said Law & Justice Sector Program funded the project for K35,734.93 for 10 x 9,000 litre tanks, accessories and fittings to be purchased from Mitre Hardware from the funds based on the quotation provided. He said in the course of his investigation, he called both Accused and gave them 2 months to produce documents obtained from Mitre Hardware for verification against the physical existence of the materials supplied by Mitre Hardware. He says the 2 Accused did not cooperate with him and so none of the documents were produced to him. He says the Commander showed him the tanks that were delivered but did not show him the accessories that were purchased. He was only shown 2 tanks although he was told 8 tanks were purchased. He also said he did some cost analysis on his investigation and determined about K11,000.00 was deficient.

6. The Defence then proceeded to make a no case submission. The Defence submission is premised on the first limb of the principle in State v Paul Kundi Rape [1976] PNGLR 96.
   
7. The principle is that where in criminal proceedings at the close of the case for the prosecution, there is a submission of no case to answer, the matter is a question of law for the judge as a tribunal of law; the test is where the evidence supports the essential elements of the offence. This is the so-called first limb or test in Paul Kundi Rape’s case (supra) in respect to a no case submission.
   
8. Where the Court decides there is no case to answer the accused is acquitted and that is the end of the matter.
   
9. However, where the tribunal decides there is a case to answer, it nevertheless has discretion to stop a case at the close of all the evidence in appropriate circumstances.
   
10. Mr. Mumure, Counsel for the Accused, Jim Kamin, submitted that his client (Jim Kamin) and Mr. Koningi for the Accused, Robert Tiki, joined in supporting him and endorsed the submission that both Accused have no case to answer on the basis that the State failed to establish on the evidence the following elements of the charge:
    

i. dishonesty

ii. applying to own use

iii. property belonging to another

11 Mr. Rangan on the other hand countered and submitted that there is prima facie evidence to call on both Accused to answer to the charge against them.

12 There has been other submissions made by the respective Counsels however, I do not consider it necessary to address these in full for the simple reason that my primary function at this stage in a no case submission based on the first test in Paul Kundi Rape is to determine whether as a matter of law and evidence exist that go to prove the essential elements of the offence.

13. Section 383A(1) of the Criminal Code Act states:

"(383A. Misappropriation of property

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

• (a) property belonging to another; or
  
• (b) property belonging to him which is in his possession or control (either solely or conjointly with another person) subject to a trust, direction or condition or on account of any other person,
  

is guilty of the crime of misappropriation of property.

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

• (a) where the offender is a director of a company and the property dishonestly applied is company property; or
  
• (b) where the offender is an employee and the property dishonestly applied is the property of his employer; or
  
• (c) where the property dishonestly applied was subject to a trust, direction or condition; or
  
• (d) where the property dishonestly applied is of a value of K2,000 or upwards.
  

(3) For the purposes of this section –

• (a) property includes money and all other property real or personal, legal or equitable, including things in action and other intangible property; and
  
• (b) a person’s application of property may be dishonest even although he is willing to pay for the property or he intends to restore the property after wards or to make restitution to the person to whom it belongs or to fulfill his obligations afterwards in respect of the property; and
  

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

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

14. The elements of the offence, which the State must establish on a prima facie basis at this state, in my view, are;

• A person
  
• Dishonestly
  
• applied
  
• to his own use or to the use of another
  
• property
  
• belonging to another
  

15. The next question I ask; is there any evidence before the Court that supports each element of the offence? This can be answered by identifying the evidence against each element.

A person – I find that there is overwhelming evidence implicating both accused to the charge. I need only refer to the evidence of Sam Wange, Gibson Bani and Gabriel Wai. In the Record of Interview by both Accused, they both acknowledged being involved, although they deny any wrong doing. An explanation is required by the Accused.

Dishonestly – I find that there is prima facie evidence of dishonesty. There is evidence given by State witnesses that no approval was given by the relevant approving authority to change or vary the original quotation. An explanation is required by the Accused.

Applied – I find that there is prima facie evidence in relation to this element. There is some evidence that certain items on the invoices issued by Mitre Hardware against the K35,734.93 cheque maybe unrelated to the scope of works in respect to the installation of the tanks. An explanation is required by the Accused.

To his own use or to the use of another – I find that there is no evidence that the Accused used the items purchased against the K35,734.93 cheque, either for their own or the use of another person, other than Bundaira CIS.

Property – There is clear evidence of this element. The evidence is the cheque of K35,374.93 and various materials purchased as per the invoices against that cheque.

Belonging to another – This element required proof of the existence of the owner of the property. I find no evidence of this element. The State alleged that the property belonged to Law & Justice Sector Program. There is no evidence of the legal identity and existence of such a body adduced before the Court. Mr. Rangan submitted that this body is an unincorporated and unregistered body and is recognized between the Governments of Australia and Papua New Guinea and therefore urged the Court to take judicial notice of such a body. With respect, I see no legal basis to do that. If such is the situation as submitted by Mr. Rangan, then proof of existence of such a body may properly be done, in my respectful view, by simply tendering an official document in the form of an agreement or treaty or other document that gives formal recognition of that body between the two governments. In The State v Francis Kumo Gene [1991] PNGLR 33, the Court in dealing with the question of amendment to an indictment on a charge of misappropriation under the Criminal Code said the State always carry the onus of proving ownership. The following was said by the Court:

"Much of this seems to point to the need to decide whether or not the accused could be prejudiced or embarrassed by making an amendment after the court has retired to consider its verdict. In this case the defence did not raise the issue of the ownership of the property. It was conducted as if it were on the basis that the ownership of the property was not in issue. Although the defence did make formal admissions under s 589 of the Criminal Code, it did not admit that the property alleged to be dishonestly applied by the accused belonged to the State. The ownership of the property was therefore in issue and the State carried the onus of proving that element. The fact that the defence chose not to make any submissions on this element whether through inadvertence or for other reasons does not vary the onus of proof". (emphasis added)

16. In the circumstances I find that there is no evidence in respect to two essential elements of the offence before the Court to call on the two Accused to answer the charge. Accordingly, as a matter of law, based on the first test principle in the Paul Kundi Rape’s case, I uphold the submission by the Defence and acquit and discharge both Accused of the charge of misappropriation. I further order that bail moneys (if any) be refunded to both Accused forthwith.

Orders accordingly.

Acting Public Prosecutor: Lawyer for the State
Koningi Lawyers: Lawyer for the Accused, Robert Tiki
Public Solicitor: Lawyer for the Accused, Jim Kamin