State v Iboro [2011] PGNC 113; N4385 (19 September 2011)

N4385

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1118 OF 2009

THE STATE

V

MARCELLA IBORO

Minj & Mount Hagen: Makail, J
2010: 14th, 15th & 21st April, 11th June
2011: 19th September

CRIMINAL LAW - Verdict - Misappropriation - Property of - Money of - K27,000.00 - Matrimonial property - Property of spouse - Property subject to a specific condition - Breach of - Proof of - Revocation of condition - Criminal Code, Ch 262 - Sections 36 & 383A(1)(b).

Facts

The accused was charged with misappropriation of property under section 383A(1)(b) of the Criminal Code, Ch 262. The State alleged she misappropriated K27,000.00, monies belonging to her husband. At that time, the husband was living and working in Australia and she was living in Mt Hagen with their four children. He sent her the money on the condition that she saved it in an account with Ela Motors for the sole purpose of purchasing a motor vehicle from Ela Motors to establish a family hire-car business. Instead, she withdrew the money and used it. She denied the charge and alleged the husband had authorised her to withdraw the money, and in any case, she was entitled to use it as it was matrimonial property and she used it for the benefit of the family.

Held:

1. On a charge of misappropriation under section 383A(1)(b) of the Criminal Code, Ch 262, the State must prove the following elements:

(a) dishonesty;

(b) application to own use or use of another;

(c) property must belong to the accused;

(d) property must be in the possession or control of the accused (whether solely or conjointly with another person); and

(e) property must be subject to a trust, direction, condition or account of another person.

2. As the State had led evidence that the property belonged to the husband, the charge was misconceived and was dismissed.

3. Where the accused raises the defence under section 36 of the Criminal Code, Ch 262, the accused is entitled to an acquittal on a charge of misappropriation of the property if the State fails to establish that first, when the accused committed the alleged offence, she was leaving or deserting him or secondly, was about to leave or desert him.

4. The State failed to establish that at the time of the accused misappropriated the money, she was leaving or deserting her husband or secondly, was about to leave or desert him.

5. Further, the State failed to establish that the condition upon which the money was given to the accused was not revoked by the husband of the accused.

6. The charge was dismissed and the accused was accordingly acquitted.

Cases cited:

Joseph Rokpa -v- The State [1994] PNGLR 535
Stanley Poka -v- The State (2010) SC 1055

Counsel:

Mr J Kesan, for the State
Mr E Wamp, for the Accused

VERDICT

19th September, 2011

1. MAKAIL, J: This is a unique case because it appears it is the first of its kind that has come before the National Court. The accused comes from Wipmul village in Hagen Central District and is the wife of the complainant Dr James Iboro. She has been charged with misappropriation of K27,000.00, monies which the State alleged belonged to her husband under section 383A(1)(b) of the Criminal Code, Ch 262. She denied the charge and contended in her defence that the money was matrimonial property and she was entitled to use it and in any case, Dr Iboro had authorised her to use it and/or the money was used for the benefit of the family.

2. It is the State's evidence through Dr Iboro that in 2007, Dr Iboro was working as a medical practitioner in Sydney, Australia while the accused and their four children were living in Mt Hagen. He was the sole bread winner of the family. He and the accused set up an arrangement to purchase a motor vehicle from Ela Motors in Mt Hagen with the intention of establishing a family hire-car business. To kick start the business, he shipped his used motor vehicle a Nissan Patrol from Australia to PNG and used it in Mt Hagen for hire purpose.

3. They opened an account with Ela Motors and deposited K10,000.00 into it. He further sought financial assistance from his family members and one of his sisters Lillian Phalanger contributed K35,000.00. He also made installment payments of various amounts until the money reached a total of K62,000.00.

4. On 13th June 2008, Lillian asked for the return of her contribution and the accused arranged with Ela Motors and refunded K35,000.00 to Lillian. A balance of K27,000.00 was left in the account and that was the amount he alleged the accused misappropriated because a couple of days later, on 18th June 2008, she withdraw it from Ela Motors without the authority and knowledge of Dr Iboro and used it. This was contrary to the intention and purpose with which the money was given to her in the first place.

5. Dr Iboro's evidence was corroborated by his elder sister Rebecca Kulno. Her evidence centered around the withdrawal of K35,000.00 from Ela Motor's account to return it to the owner, a Mr James Phalanger who was her brother in-law. He needed the money to pay for his medical bills in the US.

6. But her evidence in relation to why K35,000.00 was withdrawn was in direct conflict with a copy of a receipt of payment from Ela Motors dated 18th June 2008 stating that K35,000.00 was transferred to a deal with Ela Motors in her name. It was a payment for a Toyota Hiace 15 seater bus. On the other hand, the receipt of payment from Ela Motors corroborated the evidence of the accused that K35,000.00 was withdrawn from the account at Ela Motors to finance Mrs Kulno's deal with Ela Motors and the deal was the purchase of a new Toyota Hiace 15 seater bus.

7. It is also the State's evidence through an officer from Ela Motors in Mt Hagen named Maryanne James that she witnessed the accused receiving a cheque of K27,000.00 from Ela Motors Mt Hagen Branch Manager and escorted her to Westpac Bank in Mt Hagen where she presented the cheque for encashment and collected the cash.

8. The accused did not deny collecting a cheque of K27,000.00 from Ela Motors and presented it to Westpac Bank for encashment. She said she did that because the arrangement to purchase a motor vehicle from Ela Motors to establish a family hire-car business fell through after her sister in-law Rebecca Kulno used K35,000.00 of K62,000.00 to purchase a Toyota Hiace bus for herself. As a result, the balance of K27,000.00 was insufficient to purchase a motor vehicle and when she asked Dr Iboro as to what to do with the money, he told her to withdraw it and use it for family needs such as paying children's school fees and cost of repairs for the Nissan Patrol at Boroko Motors.

9. To verify the payment of children's school fees and cost of repairs of the motor vehicle, she produced receipts of payment. A total of K3,580.00 was spent on school fees and K19,400.00 for cost of repairs of the motor vehicle. She also produced Dr Iboro's bank statement with ANZ Bank which showed various transactions including deposits of Dr Iboro's pays and withdrawal of funds from the account.

10. She said she and Dr Iboro had a very unstable marriage. Dr Iboro did not dispute this and she said this was because Dr Iboro had extra-marital affairs with other women. On one instance, she found a cap in their laundry basket and questioned Dr Iboro about its owner. She later found out that it belonged to a female staff at Mt Hagen General Hospital. On another occasion, she discovered that Dr Iboro was having an affair with a female doctor while working in Port Moresby General Hospital. She approached this doctor and assaulted her. She was taken to the District Court and was ordered to pay compensation and stay away from her.

11. Every time, she complained to Dr Iboro about his extra-marital affairs, he assaulted her. On one occasion, Dr Iboro assaulted her on the highway between Kainantu and Goroka as they were travelling to Lae. She almost died but was rescued by a Mr Wai Rapa the Deputy Governor of Western Highlands Province who was travelling from Lae that day. He stopped and took her in his motor vehicle to the hospital where she received medical treatment. Despite all these, she remained his wife and will love him till death.

12. Her sister in-law Jenifer James gave evidence of witnessing another case of domestic violence between the accused and Dr Iboro some years prior to the alleged offence at Dr Iboro's village in Minj. This was immendiately after Dr Iboro's attack of the accused at Kainantu. She and her husband had gone to Minj to visit the accused when they heard of her attack by Dr Iboro. Dr Iboro had assaulted the accused by striking her on her head with an iron rod. She sustained a head wound and bled profusely. She was rushed to Kujip hospital and on to Mt Hagen General Hospital for medical treatment. After she recovered, she remained in her village in Mt Hagen and after Dr Iboro paid compensation to her, she returned to his village.

13. Section 383A of the Criminal Code, Ch 262 provides for the offence of misappropriation as follows:

"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) ..............;

(b) ..............;

(c) ..............;

(d) where the property dishonestly applied is of a value of K2,000.00 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) ..........; and

(c) ...........; and

(d) ............." (Underlining mine)."

14. As the accused has been charged for misappropriating her husband's money under section 383A(1)(b), the State must prove the following elements:

1. Dishonesty;

2. Application to own use or use of another;

3. property must belong to accused;

4. property must be in the possession or control of the accused (whether solely or conjointly with another person; and

5. property must be subject to a trust, direction, condition or account of another person.

15. The onus is on the State to prove first of all that, the property belongs to the accused person and not the victim or complainant. This is very important because that is how Sub-section (1)(b) of section 383A is worded. It states "[a] person who dishonestly applies to his own use or use of another person property belonging to him............" Thus, in this case, the property must belong to the accused, not Dr Iboro.

16. The State's evidence is that, the money is the property of Dr Iboro because it was hard earned cash from his work as a medical doctor in Australia and sent to the accused to save at Ela Motors for the sole purpose of purchasing a motor vehicle. On that evidence alone, the State's case must fail as the charge is misconceived. I would dismiss the charge and acquit the accused as the property did not belong to her.

17. If I am wrong in reaching that conclusion, the defence has raised the defence under section 36 of the Criminal Code, Ch 262. Section 36 provides for liability of husband and wife for offences to the other's property. It reads:

"36. Liability of husband and wife for offences to the other's property.

(1) In this section, "property", in relation to a wife, means her separate property.

(2) When a husband and wife are living together, neither of them incurs any criminal responsibility for doing or omitting to do any act with respect to the property of the other, except –

(a) an act or omission of which an intention to injure or defraud some other person is an element; or

(b) an act done by either of them when leaving or deserting, or when about to leave or desert, the other.

(3) Subject to Subsection (2), a husband or wife is criminally responsible for any act done by him or her with respect to the property of the other that would be an offence if they were not husband and wife, to the same extent as if they were not husband and wife.

(4) A husband or wife cannot institute criminal proceedings against the other with respect to the property of the other while they are living together.

(5) On the prosecution -

(a) of a husband on the complaint of his wife for an offence committed with respect to her property; or

(b) of a wife on the complaint of her husband for an offence committed with respect to his property,

the complainant is a competent and compellable witness." (Underlining mine).

18. The defence submitted the money was matrimonial property and that the State has failed to prove that when the accused misappropriated it, she was leaving or deserting Dr Iboro, or about to leave or desert him. Defence counsel submitted the mere fact that the accused was living in Mt Hagen and that Dr Iboro was and is living in Sydney at the time of the alleged offence does not necessarily mean that the accused was leaving or deserting or about to leave or desert Dr Iboro, such that it would make her criminally liable for dealing with his money.

19. I consider in a case where the defence raises a defence under section 36, the onus is on the State to prove that at the time of the alleged offence, the accused was leaving or deserting or about to leave or desert Dr Iboro. In my view section 36 is designed to protect either spouse of a marriage from being criminally liable for offences committed in relation to each other's property. This is because it is designed to protect the sanctity of marriage. The sanctity of marriage transcends from the biblical principle of oneness; where when a man and woman join in marriage, they become one flesh: see the Bible, Genesis 2: 24.

20. God intended man and woman when joined in marriage to share everything together. It would follow any property that is acquired during marriage belongs to both of them. However, as time went by, men's law made exceptions to this biblical principle of oneness. Laws have been enacted to separate husband's property from wives and vise-versa. For example, in Papua New Guinea, an investment standing in the sole name of a married woman is prima facie evidence that she is beneficially entitled to it: see section 6 of the Married Women's Property Act, Ch 281.

21. That is why, section 36(2)(b) states that, in cases where a spouse is accused of committing an offence in relation to a property of the other, it must be established first that at the time of committing the offence, the spouse is leaving or deserting the other or secondly, is about to leave or desert the other. Section 36 does not state that a spouse is criminally liable if he or she commits an offence in relation to the property of the other, when he or she has divorced the other or is about to divorce the other.

22. Therefore, the onus is on the State to prove that, at the time a spouse is accused of committing an offence in relation to a property of the other, he or she first, is leaving or deserting the other or secondly, is about to leave or desert the other.

23. In the present case, I accept the submission of counsel for the defence that the mere fact that the accused was living in Mt Hagen and that Dr Iboro was and is living in Sydney at the time of the alleged offence does not necessarily mean that the accused was leaving or deserting or about to leave or desert Dr Iboro. I say this for two reasons.

24. First, never in Dr Iboro's evidence did he say that the accused has left or deserted him or is about to leave or desert him. In my view, Dr Iboro must state clearly and unequivocally that, at the time the accused committed the alleged offence, she was leaving or deserting him or about to leave or desert him. Conversely, it is not sufficient to rely on the fact that the accused was living in Mt Hagen and he was living and working in Sydney and say that, that constituted an act of leaving or desertion.

25. Secondly, the State's evidence based on Dr Iboro's evidence which was further verified by Dr Iboro's bank statement from ANZ Bank established that he had always financially supported the accused and the children while working in Australia. He even paid school fees for the children. When he came home to Mt Hagen for holidays, he visited the children, although there appears to be a marital conflict between him and the accused which seemed to have affected his right of access to the children because the accused had denied him that right, a point that was not pursued further by the State in evidence or in submissions. Accordingly, I would not take it any further and leave it as that as it is a non-contentious issue. Thus, it would mean, despite a marital conflict, the accused had no intention of leaving or deserting him or was about to leave or desert him.

26. To my mind, Dr Iboro's actions demonstrated that he and the accused had no intention of leaving or deserting each other and this re-affirms the position of the accused where she gave evidence that despite the marital conflict between the two of them, she remained his wife and loved him till death.

27. For these reasons, I am not satisfied the State has established beyond reasonable doubt that the accused is leaving or deserting Dr Iboro or about to leave or desert him when she committed the alleged offence. This in turn means the State has failed to prove that she misappropriated Dr Iboro's money. I would dismiss the charge and acquit her for this further reason.

28. There is a final reason to dismiss the charge against the accused and that is, I am not satisfied the State has established that the accused had breached the condition upon which the money was given to her. The law is that, where money is granted for a particular purpose, the grantor has a legal and equitable proprietary interest in the money until it is expended on the purpose for which it was granted: Joseph Rokpa -v- The State [1994] PNGLR 535 and Stanley Poka -v- The State (2010) SC 1055.

29. Relying on this principle of law and the above cases, the State strongly submitted the accused breached the condition upon which she was given the money when she withdrew it and used it. However, I find Dr Iboro had revoked that condition. It is Dr Iboro's evidence that he gave the money to her to save in an account with Ela Motors for the purpose of purchasing a motor vehicle from Ela Motors. He said she withdraw the money without his knowledge or authority. She said she withdrew it with his knowledge and authority.

30. I am not satisfied with the explanation given by Dr Iboro for the obvious reason that it defies logic and commonsense that he would not have been aware of the withdrawal when it was a substantial amount of money that was paid to Ela Motors and that as a husband, he would have discussed it's withdrawal with the accused before she withdrew it.

31. On the other hand, I find the explanation of the accused reasonable and logical in the circumstances. As a wife, it is reasonable to expect her to discuss the use of the money with him prior to its withdrawal. It becomes all the more important to discuss it when Dr Iboro's sister Lillian decided to take back her contribution of K35,000.00 a couple of days earlier. As an observation, a motor vehicle in the class of a Toyota ten seater land-cruiser these days cost about K90,000.00 to K110,000.00 and obviously removing K35,000.00 from the saved up sum of K62,000.00 left a short fall of K63,000.00 to K83,000.00.

32. This would mean, there must be some discussions between the accused and Dr Iboro in relation to their plan in purchasing the motor vehicle and the remaining sum of K27,000.00. The accused said, Dr Iboro told her to withdraw it because anytime, he was going to be put off the pay-roll of the Health Department as he had finished his studies in Australia and had not returned to PNG. To my mind, that is a very reasonable explanation.

33. It goes to support the defence contention that the condition upon which the money had been given had been revoked by Dr Iboro. In other words, he had changed his mind on the use of the money by informing the accused to withdraw it and use it. For these reasons, I am not satisfied the State has proven that the accused has breached the condition to which the money was given.

34. It follows, I am not satisfied the State has established the charge against the accused beyond reasonable doubt and accordingly, acquit her. As she has been out on bail, I order her bail monies to be refunded.
______________________________

Acting Public Prosecutor: Lawyers for the State
Kunai & Co Lawyers: Lawyers for the Accused